Federal Court of Australia

EEI19 v Minister for Immigration and Citizenship [2026] FCA 1133

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 17 April 2025 be dismissed.

3.    The applicant pay the first respondent’s costs fixed in the amount of $4980.75.

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

REASONS FOR JUDGMENT

YOUNAN J:

1    On 17 April 2025, the applicant filed an application for an extension of time. The accompanying affidavit contains a draft notice of appeal for the review of a migration decision.

2    In the draft notice of appeal, the applicant seeks to appeal the decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) on 17 March 2025, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (as it then was): EEI19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 365 (primary judgment or PJ). On 27 September 2019, the Tribunal affirmed the decision of a delegate of the first respondent (the Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (Tribunal decision or T).

3    The applicant is a citizen of the People’s Republic of China, and arrived in Australia on 31 July 2015 on a Visitor (Subclass FA 600) visa. The applicant applied for a protection visa on 30 October 2015, which was refused by a delegate of the Minister on 26 August 2016.

Appearance

4    At the hearing of the application on 10 August 2026, the applicant appeared in person, assisted by an interpreter in the Mandarin language.

FACTUAL BACKGROUND

5    The factual background is conveniently summarised at paragraphs [1]–[4] and [6]–[9] of the primary judgment and in the Tribunal decision at paragraph [1], which I gratefully adopt.

APPLICATION FOR AN EXTENSION OF TIME

6    The applicant filed the application for an extension of time to file a notice of appeal pursuant to r 36.05 of the Federal Court Rules 2011 (Cth). Rule 36.05(3)(c) requires that the application be accompanied by an affidavit stating: (a) the facts on which the application relies; and (b) why the notice of appeal was not filed within time.

7    In the accompanying affidavit, the applicant states that the extension of time is requested as he was unsure of “the procedural and time limit requirement for appeal”, and as such “delayed [his] application”.

8    The decision of the primary judge was delivered on 17 March 2025. Under r 36.03 of the Rules, the applicant was required to file a notice of appeal in this Court within 28 days after the date on which the judgment was pronounced or the order made (i.e., by 14 April 2025) (appeal period). The application for an extension of time, and the affidavit in support, were lodged at 9:57 pm on 14 April 2025, and were accepted for filing on 17 April 2025.

9    The Minister submits that, pursuant to r 2.25(3) of the Rules, a document is taken to have been filed on the next business day, unless the whole document is received by 4:30 pm on a business day. The Minister submits that, as the application for an extension of time and affidavit were lodged at 9:57 pm on 14 April 2025, they were taken to have been filed on 15 April 2025: r 2.25(3)(b) of the Rules. As such, the applicant requires an extension of one day.

Legal Principles

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

11    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) 276 CLR 579 at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

12    The principles applicable to the exercise of the Court’s discretion are set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–9 (Wilcox J) (adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]–[7] (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.

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

Delay

14    In the supporting affidavit, the applicant explains the reason for the delay as follows:

I am not clear of the procedural and time limit requirement for appeal to Federal Court, so I delayed my application.

15    The Minister accepts that the length of the delay is not substantial, but nevertheless submits that the applicant has not provided a reasonable explanation for the delay (i.e., that he was “not clear” about the procedure and time limit): SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]–[9] (Katzmann J), citing SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6] (Flick J). I accept that submission. The applicant does not explain why he sought to file the application at 9.57 pm on the last day of the appeal period, and not earlier.

Prejudice

16    The Minister accepts that he would not suffer any substantive prejudice if the extension was granted. The Minister submits correctly that the absence of prejudice, of itself, is insufficient to justify the grant of an extension of time: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per (Flick, Griffiths and Perry JJ).

Merits

17    The Minister contends that the applicant’s proposed grounds of appeal are not capable of establishing error in the primary judge’s reasoning, or the Tribunal’s decision, and as such this should weigh heavily against granting the extension of time.

18    In that regard, the Minister contends that in applications for an extension of time, the merits of the proposed grounds should be considered at a reasonably impressionistic level: Tu’uta Katoa at [17] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

19    The applicant proposes three grounds in the draft notice of appeal:

Grounds of appeal

1.    The Tribunal committed a jurisdictional error by failing to properly assess the real risk of significant harm I may face if I return to China.

2.    The Tribunal failed to conduct the hearing in an impartial manner, which constitutes bias.

3.    I was not given sufficient opportunity to respond to key issues, which is unfair.

20    These grounds were not particularised in the draft notice of appeal. Further, the applicant failed to provide an outline of written submissions, contrary to the direction of Registrar McCormick on 30 April 2025.

21    At the hearing of the application, the applicant was invited (on more than one occasion) to explain the proposed grounds of appeal. The applicant either indicated that he had nothing to add or he simply repeated his claim, including that if he returned to China, he would be persecuted. It was evident that the applicant was not able to explain the proposed grounds of appeal. Nevertheless, I turn to consider their merit.

Ground 1 – failure to properly assess the real risk of significant harm

22    The first ground of the proposed appeal contends that the Tribunal engaged in jurisdictional error by “failing to properly assess the real risk of significant harm [the applicant] may face if [the applicant] return[s] to China”.

23    The applicant did not explain in what respect the Tribunal’s assessment was deficient. The onus lies on the applicant to: (a) in the first instance, identify the basis of the asserted grounds; and (b) then, substantiate those grounds by providing a legal and/or factual basis for them. The lack of particularisation does not thereby reverse that onus.

24    As the primary judge found, the Tribunal’s decision ultimately turned on an adverse credit finding (PJ [27]).

25    The Minister submits that, as held by the primary judge (at [27]), the Tribunal analysed the factual claims and identified inconsistencies and anomalies in the applicant’s evidence, including false information. There is no discernible error in the primary judge’s finding that the Tribunal had an evident basis for its findings, and provided a rational basis for its decision. It is evident that the applicant simply disagrees with those findings.

Ground 2 – bias of the Tribunal

26    The second ground of the proposed appeal contends that the Tribunal “failed to conduct the hearing in an impartial manner, which constitutes bias”.

27    The applicant did not explain in what respect the hearing was not conducted in an impartial manner.

28    The Minister submits that, as held by the primary judge (at [28]), there is no basis for establishing apprehended or actual bias on the part of the Tribunal. (It is not evident whether the claim extends to one or both.) The Minister submits that, in the circumstances, it was open to the primary judge to have found that a fair-minded observer would not see anything in the reasons for decision or in the description of the hearing processes that suggests bias. The applicant has not demonstrated any error in that finding.

29    In the absence of particularisation of a claim of bias, care must be taken not to place the burden on the respondent to demonstrate the absence thereof. The applicant has not identified the basis of, or substantiated, his claim of bias, which is made in circumstances where one would expect the applicant to be able to identify in what respect (he claims) the decision-maker was not impartial; in particular, what aspect of the hearing processes revealed or suggested a closed mind.

Ground 3 – opportunity to respond to “key issues”

30    The third ground of the proposed appeal contends that the applicant was “not given sufficient opportunity to respond to key issues, which is unfair”.

31    As with ground 2, the applicant did not explain in what respect (he says) the hearing process was deficient.

32    In any event, the primary judge found (at [29]) that the applicant was repeatedly invited to provide information in advance of the hearings (there were two), and the Tribunal put to the applicant its concerns about the discrepancies in his evidence, and referred to the applicant’s answers in the reasons for decision. The applicant has not demonstrated any error in that finding.

CONCLUSION

33    As the proposed grounds of appeal have no merit, notwithstanding the minimal delay, the application for an extension of time to appeal the decision of the primary judge should be dismissed, with costs.

Costs in a fixed amount

34    The Minister seeks costs in a fixed amount of $4980.75, by reference to item 15.2 of Sch 3 to the Rules, which sets the maximum amount that may be claimed in a migration matter where the application is dismissed after the hearing (short form bill amount). The Minister served an affidavit on the day of the hearing, 10 August 2026, in support of the application. At the hearing, the applicant indicated that he did not have anything to say in relation to the Minister’s costs application.

35    The costs application is properly made under s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth) and r 40.43(3) of the Rules.

36    Given the nature of the matter and the difficulty in obtaining a response from the applicant to email communication (at the hearing the applicant indicated that he had mechanical difficulties in that regard, even though he was receiving material served by these means), I am satisfied that it is appropriate to award costs on a lump sum basis in the efficient disposition of this matter. I am also satisfied that the amount sought, which is below the short form bill amount, is reasonable, based on the evidence of costs incurred by the Minister’s representatives for the various steps in the proceeding.

Associate:

Dated:    14 August 2026