Federal Court of Australia

BCD22 v Minister for Immigration and Citizenship [2026] FCA 1227

ORDERS

THE COURT ORDERS THAT:

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

2.    The application for an extension of time to seek leave to appeal accepted for filing on 15 November 2023 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

STELLIOS J:

Introduction

1    Before the Court is an application by the applicant, BCD22, for an extension of time to seek leave to appeal from the judgment of the primary judge in BCD22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 928 (primary judgment or PJ), dismissing BCD22’s application to the Federal Circuit and Family Court of Australia (Division 2) seeking an extension of time under s 477(2) of the Migration Act 1958 (Cth).

2    The application to this Court was accepted for filing on 15 November 2023 alongside a supporting affidavit sworn by BCD22 on 9 November 2023.

3    For the reasons that follow, the application must be dismissed.

Background

4    Given the outcome in this case, it is only necessary to give a brief account of the background. That background, which has not been disputed, is drawn from the reasons of the primary judge.

5    BCD22 is a citizen of the Republic of India. On 6 July 2016, he applied for a protection visa. The application was refused by a delegate of the Minister on 20 February 2017.

6    BCD22 applied to the then Administrative Appeals Tribunal for review on 8 March 2017. BCD22 was invited to attend a hearing on 22 October 2021; however, he did not appear at the hearing and subsequently claimed that he did not receive the invitation. On 25 October 2021, the Tribunal dismissed the application and sent an email to BCD22 notifying him of that decision and the opportunity to seek reinstatement of the Tribunal proceeding.

7    BCD22 did not respond or seek reinstatement within the period required and, on 9 November 2021, the Tribunal confirmed its decision to dismiss the application.

8    BCD22 then applied to Division 2 for an extension of time under s 477(2) of the Migration Act to pursue a judicial review application under s 476 of the Migration Act. The grounds alleged that the Tribunal had erred by failing to give “proper, genuine and realistic consideration” to the evidence and by failing to provide BCD22 with adequate opportunity to present his case. In substance, the grounds were directed to the disposition by the Tribunal of the application without BCD22’s attendance at the hearing.

9    In assessing the merits of the claim, the primary judge was satisfied that the statutory notification requirements had been satisfied and that the Tribunal had acted reasonably in exercising its discretion to dismiss the application. The primary judge concluded that there was no arguable basis to support the contention that the Tribunal’s reasons for dismissing his application were attended by any error (PJ [20]–[28]). Nor did the primary judge find any error in the Tribunal’s confirmation of the dismissal (PJ [30]–[32]). Not being satisfied that it was necessary in the interests of the administration of justice that time should be extended (PJ [33]), the primary judge dismissed the application.

10    The proposed grounds for appeal to this Court are that the primary judge erred (a) by upholding that the Tribunal gave adequate opportunity to the appellant to set aside the dismissal of the review application for non-appearance and (b) by failing to ensure that BCD22 as a litigant in person did not suffer disadvantage from exercising his right to be self-represented.

11    The application to this Court was heard on 21 July 2026. BCD22 appeared in person at the hearing, as he did in Division 2, and was assisted by an interpreter. He filed no written submissions in support of his application and, despite being given the opportunity to do so at the hearing, he declined to elaborate on his proposed grounds or the questions raised in the appeal.

was the primary judge’s decision interlocutory in character?

12    As will become apparent, it is first necessary to consider the character of the primary judge’s decision to refuse an application to extend time. The form of the application in this Court is premised on the assumption that the primary judge’s decision to refuse an extension of time application was interlocutory in character, thereby requiring the grant of leave to appeal to this Court under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the form of the application indicates that the application was made pursuant to r 35.14 of the Federal Court Rules 2011 (Cth). The Minister’s submissions assumed that position. While the question was not addressed in submissions, the assumption appears to be soundly based. As McElwaine, McEvoy and Neskovcin JJ said in Gong v Nipps (liquidator), in the matter of i-Prosperity Pty Ltd (in liq) [2024] FCAFC 102; 305 FCR 55 at [29]–[30]:

The test for determining whether an order is final or interlocutory is “whether the order, as made, finally determines the rights of the parties in a principal cause pending between them”: Re Luck [2003] HCA 70; 78 ALJR 177 at 178 [4]; 203 ALR 1 at 2 [4] (McHugh ACJ, Gummow and Heydon JJ), citing Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at 230 [25] (McHugh, Kirby and Callinan JJ); Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 443 (Windeyer J).

Whether the rights of the parties are finally determined by the order will depend on whether the legal, not the practical, effect of the judgment is final: Carr [v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246] at 248 (Gibbs CJ); Re Luck at [4] (McHugh ACJ, Gummow and Heydon JJ).

13    It has been held in a number of Full Court decisions that a decision by a single judge of this Court to extend or not to extend time to bring statutory appeal proceedings in this Court is interlocutory in character: see Luck v Chief Executive Officer of Centrelink (No 2) [2015] FCAFC 112; 67 AAR 399 at [22] (Collier, Griffiths and Mortimer JJ); VWYJ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1 at [21] (Gray J, with Kiefel J and Lander J agreeing); Spirakos v Deputy Commissioner of Taxation [2005] FCAFC 229; 61 ATR 168 at [2] (Sundberg, Marshall and Merkel JJ); Pham v Comcare [2003] FCAFC 166 at [8] (Finn, Merkel and Stone JJ); Cooper v Comcare [2002] FCAFC 347 at [4] (French, Carr and Finn JJ) and Vranic v Commissioner of Taxation [2002] FCAFC 26; FCA 146; 67 ALD 798 at [2] (Beaumont, Finn and Sundberg JJ).

14    Although I have not had the benefit of submissions on the point, I am prepared to accept that the same conclusion applies to the decision of the primary judge to refuse to extend time for BCD22 to bring judicial review proceedings in Division 2. The practical effect of the primary judge’s decision to refuse to grant an extension was to preclude BCD22 from prosecuting his judicial review application, but the primary judge’s decision to refuse leave does not legally determine the judicial review claims.

No jurisdiction to hear the appeal

15    With that in mind, the immediate difficulty with the application to this Court is that, despite the general position that the Court can hear an appeal from Division 2 judgments (see Federal Court Act s 24(1)(d)), an appeal cannot be brought to this Court in circumstances where Division 2 has decided not to extend time under s 477(2) of the Migration Act. Section 476A(3) of the Migration Act provides:

(3) Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a) a judgment of the Federal Circuit and Family Court of Australia (Division 2) that makes an order or refuses to make an order under subsection 477(2); …

16    Accordingly, as Perram J said in Rinka v Minister for Immigration and Citizenship [2009] FCA 1028 in relation to the companion provision in s 476A(3)(b), “the unavoidable effect [of s 476A(3)(a)] is that the Federal Court has no jurisdiction to entertain an appeal” from the judgment of the primary judge: at [9]. See also Neagoe v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 273 at [17]–[20] (McEvoy J), and the cases cited therein.

17    The Court outlined this difficulty to BCD22 during the hearing. Other than indicating that he had been informed that he could appeal to this Court, BCD22 did not wish (and understandably might not have been able) to say anything further about the jurisdictional obstacle.

18    In circumstances where the Court lacks the jurisdiction to hear the proposed appeal and, consequently, the appeal has no prospect of succeeding, an extension of time for the applicant to seek leave to appeal should not be granted: see CWF19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 881 at [1], [7]–[9] (Snaden J). (I will return below at [24] to discuss further the basis for dismissing the application).

19    It is unnecessary to consider the underlying merits of BCD22’s arguments: see Neagoe at (McEvoy J). However, I will indicate that the primary judge applied the correct principles for determining whether an extension of time should be granted (PJ [9]–[11]) and reached conclusions on the various factors, including the merits of the proposed grounds (PJ [12]–[32]).

costs

Is the Minister disentitled by r 36.72(4)?

20    The Minister seeks an order for costs in the fixed amount of $4,500. However, r 36.72(4) of the Federal Court Rules provides that if a respondent has not filed a notice objecting to the competency of the appeal under r 36.72, and the appeal is dismissed by the Court as not competent, the respondent is not entitled to any costs of the appeal. Subrule 36.72(1) provides that a respondent who objects to the competency of an appeal must, within 14 days after being served with a notice of appeal, file a notice of objection to competency.

21    In Singh v Minister for Immigration and Border Protection [2017] FCA 1316, in circumstances materially indistinguishable from the present case, Pagone J refused to award costs in the Minister’s favour because a notice objecting to competency had not been filed: at [5]. In light of that judgment, I invited the Minister and BCD22 after the hearing to file written submissions on the question. The Minister submitted that Pagone J’s determination in Singh regarding the Minister’s entitlement to costs was not correct for the following reasons:

(1)    Rule 36.72 falls within Part 36 of the Federal Court Rules and concerns the ending of appeals. The application before the Court is for an extension of time to seek leave to appeal that falls under the governance of Part 35 of the Federal Court Rules. There is no provision within Part 35 analogous to r 36.72, or which otherwise provides for the “ending” of an application for leave to appeal on the basis of its competence.

(2)    The Court should not find that the application for an extension of time to seek leave to appeal is incompetent. In circumstances where the decision of the primary judge was interlocutory in nature, the Court’s jurisdiction is plainly enlivened under s 24(1A) of the Federal Court Act. Rather, the position should be that either the Court not extend time or, if time were extended, not give leave to appeal because the notice of appeal, if filed, would be incompetent. In other words, the appeal is not incompetent until the Court grants leave to file the notice of appeal.

(3)    Accordingly, r 36.72 bears no relevance to the question of costs in this case.

22    Understandably, BCD22 did not take up the invitation to provide submissions.

23    It is convenient to turn first to the submission that the application for an extension of time to seek leave to appeal should not be seen as incompetent. I am not prepared to accept that submission. Each of (a) an application to seek leave to appeal, and (b) an application seeking an extension of time to seek leave to appeal, is parasitic on the proposed appeal and, it might have been thought that, if the appeal is incompetent, then those applications are also incompetent. As Katzmann J said in equivalent circumstances in Ahmed v Minister for Immigration and Border Protection [2015] FCA 1174 at [5], where an application had been made for an extension of time to bring an incompetent appeal, “[i]f the appeal would not be competent, then an application for an extension of time to appeal would surely not be competent”. In other words, if there is “no power to entertain an appeal from a judgment”, there is no power “to grant leave to bring such an appeal”: see Praljak v Office of the Australian Information Commissioner [2025] FCAFC 126; 311 FCR 178 at [48] (Mortimer CJ, Colvin and Thawley JJ).

24    If the application before the Court is in fact incompetent, then it is perhaps preferable for it to be dismissed on that basis rather than on the basis that the extension of time should not be granted because the appeal is incompetent (see above at [18]). However, given that the substantive outcome would be no different for BCD22, there is little utility in exploring that question further in the absence of the issue being fully ventilated by the parties.

25    In any event, the question to be addressed is whether r 36.72(4) operated in this case. If it did, and its terms were satisfied, then the Minister would be disentitled from seeking costs.

26    Subrule 36.72(4) only operates where there has been non-compliance with r 36.72(1). Under that rule, where a respondent objects to the competency of an appeal, the notice of objection to competency must be filed “within 14 days after being served with a notice of appeal” (emphasis added). The question is whether the expression “served with a notice of appeal” can include service of an application to extend time to seek leave to appeal, which includes an affidavit attaching a draft notice of appeal: r 35.12(2)(d).

27    In its reference only to a “notice of appeal”, the text of the provision would tend to suggest that it does not. The filing of a “notice of appeal” is dealt with in rr 36.01 and 36.02. It must take a particular form, include certain matters and be filed in a specified registry. The time for filing and serving is prescribed in r 36.03 which deals differentially with the filing of a notice in the ordinary case (where leave is not required) and where leave to appeal is granted. Service of a notice of appeal is further dealt with in r 36.04. The surrounding provisions tend to confirm that the reference to “being served with a notice of appeal” in r 36.72(1) is a reference to being served with the particular court process identified in Part 36.

28    By contrast, an application for leave to appeal and an application for an extension of time to seek leave to appeal are dealt with, respectively, in rr 35.12 and r 35.14. The service of those applications is dealt with in rr 35.15 and 35.16.

29    The Rules, thereby, draw a distinction between the treatment of the various applications and, importantly, their service. That tends to confirm that the text of r 36.72 means what is says when it refers to the respondent “being served with a notice of appeal”. While I consider the outcome to be anomalous, to read “notice of appeal” in r 36.72 to include an application for leave to appeal (or an application for an extension of time to seek leave to appeal) would be to apply a level of creativity that is contrary to the way in which the provisions are drafted.

30    That outcome is consistent with the Minister’s submission that r 36.72 falls within Part 36 of the Federal Court Rules, rather than Part 35 which contains rr 35.12 and 35.14. This structural feature was recognised by Katzmann J in Ahmed in the following passage (at [5]):

The Federal Court Rules [] provide for the filing of an objection to the competency of an appeal (r 36.72(1)) and for the filing of an objection to the competency of an application for judicial review in a migration matter heard in the original jurisdiction of the Court (r 31.24) but there is no rule providing for the filing of an objection to the competency of an application to bring an appeal, such as an application for an extension of time to appeal or an application for leave to appeal. It seems to me that the lacuna in the Rules would not preclude the Court from dismissing the application as not being competent.

31    The application referred to by her Honour in the final sentence of the above quote was an application to extend time to bring an appeal. That led her Honour to say what was quoted earlier in these reasons at [23], being that an application for an extension of time to appeal must surely be incompetent if the appeal would be incompetent.

32    Her Honour further observed that the Minister was entitled to a favourable costs order. However, in that case the Minister had filed a notice of objection to competency (at [4]), and it is not clear whether the order for costs was made on the basis that r 36.72 was inapplicable or, alternatively, on the basis that it was applicable but that the terms of the disentitling provision in r 36.72(4) were not satisfied.

33    However, for the reasons set out above, and recognising that my conclusion has been reached without the benefit of an effective contradictor, I accept the Minister’s submissions that r 36.72(1) does not operate and, therefore, r 36.72(4) does not disentitle the Minister from seeking costs. While Pagone J reached a contrary view in Singh, it is apparent from the short passage in his Honour’s ex tempore reasons that the issue was not the subject of close consideration or detailed submissions.

34    I will now consider whether the Minister’s proposed costs order should be made.

Should the costs be fixed at $4,500?

35    The proposed fixed costs order was put to BCD22 during the hearing. BCD22 enquired whether a costs order would be made if the application was withdrawn. The Minister indicated that the proposed costs order would still be pressed. The Court explained to BCD22 that the ordinary rule is that the unsuccessful party would be ordered to pay the costs of the successful party unless the unsuccessful party were able to explain why that should not follow. No further argument was advanced by BCD22, who indicated that he would abide by the Court’s order. I see no reason why the ordinary rule that costs are to follow the event should be displaced in the present case.

36    As to an order that costs be fixed as a lump sum of $4,500, s 43(3)(d) of the Federal Court Act recognises that the Court can award a party costs in a specified sum. I accept the Minister’s submission that a fixed sum costs order is appropriate and that the amount of $4,500 is reasonable.

37    First, it is beneficial for both parties that an order be made in that amount. The primary judgment was given on 18 October 2023, and a fixed sum order will facilitate the final resolution of this proceeding without the need for the parties to consume additional time to have the costs assessed: see Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; 253 FCR 403 at [20] (Allsop CJ, Besanko and Middleton JJ). Further, the amount of $4,500 is approximately half the amount that can be claimed in a Short Form Bill for this kind of application when dismissed after a hearing: see r 40.43(3) and sch 3 item 15.2 of the Federal Court Rules; BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29]–[30] (Griffiths J).

38    Secondly, leading up to a case management hearing listed for 16 April 2026 to consider the timetabling orders to progress the appeal that had been put in place by a Registrar of the Court, BCD22 (a) was unresponsive to communications from the Minister and the Court and (b) failed to attend the case management hearing held on 16 April 2026.

39    During that case management hearing on 16 April 2026, the Minister sought to have the application dismissed under r 35.32(c) and (d) and r 35.33(1)(a)(i) of the Federal Court Rules for BCD22’s failure to attend and for want of prosecution. I declined to make that order and adjourned the case management hearing until 21 April 2026, indicating that I would hear the dismissal application at that time with the benefit of a supporting affidavit. Annabelle Wilford, solicitor for the Minister, affirmed an affidavit which was filed on 20 April 2026.

40    BCD22 attended the case management hearing on 21 April 2026 and had no objections to the Registrar’s orders. The two case management hearings, and the time and expense of Ms Wilford preparing and filing the supporting affidavit, might have been avoided if BCD22 had agreed to the timetabling orders (as he eventually did) when contacted by the Minister and the Court ahead of the first case management hearing.

41    Thirdly, when given the opportunity at the hearing, BCD22 did not dispute that the order should be made.

disposition

42    For those reasons, the application for an extension of time to seek leave to appeal must be dismissed with costs fixed in the amount of $4,500.

43    I will also make the order sought by the Minister to change the name of the first respondent to be “Minister for Immigration and Citizenship”.

Associate:

Dated:    28 August 2026