Federal Court of Australia

AAS18 v Minister for Immigration and Citizenship [2026] FCA 1331

ORDERS

THE COURT ORDERS THAT:

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

2.    The name of the second respondent be amended to “Administrative Review Tribunal”.

3.    The application for an extension of time to file a notice of appeal under rule 36.05 of the Federal Court Rules 2011 (Cth) be dismissed.

4.    The applicant is to pay the costs of the first respondent 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

HALLEY J:

A.    Introduction

1    This is an application for an extension of time to appeal from the orders and judgment of a judge of the then Federal Circuit Court of Australia (Primary Judgment) dismissing an application for judicial review of a decision of the second respondent (Tribunal) which had affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) (subclass 866) visa (Protection Visa).

2    The issue for determination in this case is whether the applicant should be given an extension of time to appeal the Primary Judgment given his application was filed 968 days out of time.

3    The applicant is a citizen of the People’s Republic of China. He arrived in Australia on a student visa on 25 August 2014.

4    On 27 November 2014, the applicant lodged an application for a Protection Visa on the ground that he feared harm because he had been detained and beaten for his involvement in a factory strike against his employer in 2013.

5    On 7 December 2015, a delegate of the Minister refused to grant the applicant a Protection Visa, as he was not satisfied that the applicant was owed protection obligations under s 36(2) of the Migration Act 1958 (Cth) (Act) (delegate’s decision). The applicant had been invited on two occasions to attend interviews with the delegate to discuss his claims, but did not respond to those requests or attend those interviews.

6    On 31 December 2015, the applicant applied to the Tribunal for review of the delegate’s decision.

7    On 24 October 2017, the Tribunal wrote to the applicant indicating that it had considered the material before it but it was unable to make a favourable decision on this information alone. The Tribunal therefore invited the applicant to appear before it at a hearing scheduled for 7 December 2017 (hearing invitation). The applicant did not respond to the hearing invitation and did not attend the hearing on 7 December 2017.

8    On 11 December 2017, the Tribunal made a decision pursuant to s 426(1A)(a) of the Act (as then in force) without taking any further action to allow or enable the applicant to appear before it and affirmed the decision under review (Tribunal’s decision).

9    On 3 January 2018, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The applicant appeared as a litigant in person at the hearing before the primary judge on 9 July 2020.

10    On 16 July 2020, the primary judge dismissed the applicant’s application for judicial review and published reasons: AAS18 v Minister v Immigration [2020] FCCA 1933 (Primary Judgment or PJ).

11    On 8 April 2023, the applicant filed an application in this Court for an extension of time in which to appeal the orders made by the primary judge. For various reasons, including a lack of responses from the applicant, this application was not docketed to a judge of this Court for hearing until May 2026.

B.    Legal principles governing extensions of time

12    Rule 36.03 of the Federal Court Rules 2011 (Cth) (Rules) provides that any notice of appeal must be filed within 28 days from the date on which the judgment appealed from was pronounced or orders were made.

13    The principles governing the grant of an extension of time to file a notice of appeal pursuant to r 36.05 of the Rules are well established.

14    First, the decision to grant an extension of time is discretionary: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28] (Foster J).

15    Second, the discretion must be exercised having regard to “the importance of finality in respect of judicial decisions and the important role that the observance of time limits has in maintaining the finality of judicial determinations”: BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 at [37] (Colvin J).

16    Third, factors relevant to the exercise of the discretion generally include the length of the delay, the explanation for the delay, any prejudice caused to the respondent by reason of the delay, and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ).

17    Fourth, an applicant for an extension of time to file an appeal bears the onus of persuading the Court that an extension should be granted: Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56] (Foster J).

C.    Should an extension be granted?

C.1.    The delay was exceptional

18    Given the orders the subject of the proposed appeal were made by the primary judge on 16 July 2020, any notice of appeal was required to be filed by 13 August 2020. It was not until 8 April 2023, some 968 days out of time, that the applicant applied for an extension of time to appeal the orders made by the primary judge.

19    The length of the delay is exceptional. That weighs heavily in favour of not granting leave given the overriding concern that a delay of that length is inconsistent with the orderly and proper administration of justice and the Act.

C.2.    The explanation for the delay was not persuasive

20    The only explanation for the delay provided by the applicant prior to the hearing of this application was given in his affidavit affirmed on 5 April 2023 (as written):

I delayed my appeal to the Federal Court because I could not get access to legal aid during Covid-19 period.

21    As submitted by the Minister, this explanation is manifestly inadequate. Any inability to access legal aid cannot excuse a failure to comply with time periods specified in the Rules. In any event, the applicant has not explained what, if any, steps he might have taken to progress the filing of an extension application after the end of the Covid-19 pandemic.

22    At the hearing of the extension application, however, the applicant provided a new explanation for his delay in making the application. He stated from the bar table that the reason for his delay was that he did not appreciate until he was told by “other people” in 2022 or 2023 that he was able to appeal the decision of the primary judge.

23    There appears to be some conflict between these two explanations. It is not readily apparent how the Covid-19 pandemic could obstruct the applicant’s appeal if he was not aware of his entitlement to appeal until after the Covid-19 pandemic. Further, on multiple occasions during the hearing the applicant accepted that he never took any steps to obtain legal assistance. It is therefore unclear what the effect of the Covid-19 pandemic on the applicant’s lack of legal assistance might have been.

24    When asked about why he had not sought any legal advice about any appeal, the applicant offered three explanations: (a) he did not understand that he had any entitlement to appeal, (b) he did not speak English, and (c) “a lot of lawyers are liars”.

25    The applicant’s conflicting and inadequate explanations are not sufficient to justify the exceptional delay in filing an appeal. These explanations weigh against my grant of leave.

C.3.    There was some, but limited prejudice to the Minister

26    I accept that the Minister has a legitimate and important interest in the efficient and timely administration of the Act. The exceptional delay in the applicant’s application for leave to appeal is antithetical to that interest. It is difficult, however, to determine the significance of that prejudice to the Minister, particularly as compared with the prejudice to an applicant refused a Protection Visa if they are precluded from advancing an appeal that might otherwise be arguable. The Minister does not otherwise point to any specific prejudice that might arise if the extension of time to file the appeal was granted. Accordingly, this consideration weighs only lightly against the grant of leave.

C.4.    The proposed appeal grounds

27    Notwithstanding lengthy delays and inadequate explanations for those delays, the Court will generally consider, at least at an impressionistic level, the merits of a proposed appeal in migration matters. This is because the significant prejudice to an applicant who has been denied a Protection Visa from pursuing an appeal that might have merit, namely likely removal to their country of origin or a third country without a hearing, is self-evident.

28    Moreover, in circumstances where the applicant did not appear at a hearing before the Tribunal and is unrepresented in this Court in an application for an extension of time to appeal the orders made by the primary judge, it is generally desirable for the Court to satisfy itself that there has not been any jurisdictional error, irrespective of the length of the delay or the adequacy of the explanation for the delay.

29    Section 36(2)(a) of the Act provides that a criterion for the grant of a Protection Visa is that an applicant is a non-citizen of Australia for whom the Minister is satisfied that Australia owes protection obligations because the applicant is a refugee. Where a person has a nationality, the meaning of “refugee” for the purposes of the application of the Act is defined in s 5H(1)(a) and 5J(1) of the Act as a person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political group, who by reason of that fear is unable or unwilling to avail themselves of the protection of that country and where there is a real chance that, if returned, the person would be persecuted for that reason.

30    Alternatively, s 36(2)(aa) of the Act provides that a person who is not a refugee for the purposes of s 36(2)(a) may nevertheless met the criteria for the grant of a Protection Visa if the Minister is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of an applicant being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.

31    The applicant seeks to raise the following four proposed unparticularised grounds of appeal (as written):

1.    There exists unfairness because my claims were ignored.

2.    Tribunal does not use its discretion properly and the law may give Tribunal too much discretion.

3.    My claims should be properly considered even if I did not attend hearing.

4.    Some unfavourable findings were not based on substantiated information.

32    Proposed appeal grounds 2 and 4 were not raised before the primary judge. In addition to obtaining an extension of time to file the appeal, the applicant would also need leave to raise those grounds on appeal. If that leave was granted, the Minister would be prejudiced because leave to raise those grounds for the first time on appeal would effectively deprive the Minister of any right of appeal on those grounds, inconsistently with the scheme for judicial review and appellate review established by the Act: Han v Minister for Home Affairs [2019] FCA 331 at [20] (Bromwich J). Whether such leave would be granted requires consideration of the interests of justice in the context of the merit of the grounds, prejudice and the explanation for not advancing the ground below. Given the applicant was a litigant in person before the primary judge, that might well provide a cogent reason for it not being raised below, but the critical issue remains the merit of the proposed grounds.

33    At the hearing of his application for an extension of time, the applicant was invited, but unable, to clarify or particularise his proposed grounds of appeal. The applicant advised the Court that he had asked a friend who spoke English to translate his proposed grounds of appeal for him, but he could not now remember any more detail about his proposed grounds and his copy of the Primary Judgment had been stolen.

34    Given the absence of any substantive assistance from the applicant as a litigant in person who appeared with the assistance of an interpreter, I have independently reviewed the decisions of the Tribunal and the primary judge to determine whether the proposed appeal grounds have sufficient merit to warrant the somewhat extraordinary grant of an extension of time to file an appeal in circumstances in which the application is made 968 days out of time.

35    It is first necessary to identify (a) the basis on which the Tribunal proceeded in the absence of the applicant and (b) the relevant reasoning of the Tribunal in finding that it was not satisfied that the applicant was a person in respect of whom Australia owed protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.

C.4.1.    The decision of the Tribunal

36    On 31 December 2015, the applicant applied to the Tribunal for a review of the delegate’s decision.

37    On 24 October 2017, the Tribunal sent a letter by email to the applicant, in which it told him that the Tribunal was unable to “make a favourable decision” on the information in his application for a Protection Visa. The letter invited the applicant to appear before the Tribunal at 9.00 am on 7 December 2017 to “give evidence and present arguments relating to the issues arising in your case”. The Tribunal also stated in its letter to the applicant that if he did not attend that scheduled hearing, it “may make a decision on the review without taking any further action to allow or enable [him] to appear before [it] or may dismiss [his] application for review without any further consideration of the application or the information before [it].” The Tribunal did not receive any response from the applicant regarding its hearing invitation (at DR [4]).

38    On both 30 November 2017 and 6 December 2017, the Tribunal sent SMS messages to the applicant reminding him of the hearing on 7 December 2017, but the delivery of both messages failed (at DR [5]).

39    The applicant did not attend the hearing before the Tribunal on 7 December 2017. He did not make any request for an adjournment, provide any explanation for his absence, and nor did he file any evidence.

40    The Tribunal determined to proceed with the hearing in the absence of the applicant pursuant to s 426A of the Act by reference to the claims advanced by the applicant in his application for a Protection Visa. The Tribunal provided the following summary of the claims made by the applicant in his application for a Protection Visa (at DR [13]):

•    He was born on 12 January 1988 Gaocheng city in Hebei Province in China.

•    In January 2008, he commenced work at Huasen Wood Industry Limited. This company often forced its workers to work overtime and did not pay them for doing so. The factory was filled with dust and harmful gas. The gas affected the lives of residents nearby. Those residents complained to the government but the problem was not resolved.

•    In around September 2013, two of the workers were diagnosed with lung diseases and had to pay large sums of money for medical treatment. The company did not pay them any compensation and dismissed them from their employment. Sick workers complained to the Labour Bureau but the problem was not resolved. Workers sought the assistance of the Workers' Union but the Workers' Union did not help them. The Chairman of the Workers Union was also the Deputy General Manager of Huasen Wood Industry Limited.

•    In November 2013, he and three other workers went to the Labour Bureau to report the problems at Huasen Wood Industry Limited and request an investigation. After a few days, they were beaten by strangers who warned them not to make any trouble or they would be killed. They realised that their petition must have been leaked. The boss of the Huasen Wood Industry Limited stated that he would rather pay 1 million yuan to get the matter settled than pay the workers even one penny.

•    On the morning of 18 December 2013, more than 200 workers gathered in front of Huasen Wood Industry Limited to strike. The government deployed a large number of armed Police to disperse them and when workers refused to leave they were dispersed by force. Over 20 people were arrested and some were injured. He and the other three organisers of the strike were detained for 15 days on charges of disturbing public order. At the detention centre, they were often beaten by other inmates and the guards turned a blind eye to it. He was fired from his job.

•    He fears living in China.

41    The Tribunal found that the applicant’s claims were made “in the most general terms and they are unsubstantiated” (at DR [20]). The Tribunal stated that if the applicant had attended the hearing on 7 December 2017, it would have sought further details of his claims, including (a) why he had chosen to make a complaint to the Labour Bureau given his previous complaints had not been resolved and whether he made a complaint to the Police (at DR [20]), (b) how he organised the Huasen Wood Industry Limited strike, the purpose of the strike, his detention, the charges against him, and how he had managed to support himself financially after he was dismissed until he left China (at DR [21]), and (c) whether he as able to safely relocate within China, why he delayed applying for a Protection Visa and why he now fears returning to China (at DR [22]).

42    The Tribunal concluded, on the limited evidence before it, that it was not satisfied that (a) the applicant had a well founded fear of prosecution because of his political opinions or any reason under the 1951 Convention relating to the Status of Refugees (Refugee Convention), (b) there was a real chance that he would be at risk of serious harm for any Refugee Convention reason if he returned to China, now or in the foreseeable future, and (c) for these reasons, the applicant was a person in respect of whom Australia owed any protection obligations under s 36(2)(a) of the Act (at DR [24]).

43    The Tribunal also concluded, on the limited evidence before it, that it was not satisfied that there were substantial grounds for any belief that, as a necessary and foreseeable consequence of the applicant being removed to China, there was a real risk that he would suffer significant harm. For that reason, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act (at DR [27]).

C.4.2.    Decision of the primary judge

44    The applicant appeared as a litigant in person at the hearing before the primary judge on 9 July 2020 and was given leave to appear by telephone given the Covid-19 situation at the time. He was assisted by a Mandarin interpreter who was present in Court (at PJ [24]). The applicant did not file any written submissions.

45    The applicant advanced the following grounds of alleged jurisdictional error before the primary judge (as written):

1.    Tribunal did not treat my case properly because Tribunal did not consider that I was harmed in China.

2.    Tribunal did not consider that I would be harmed if I return to China.

3.    There exists unfairness because my claims were ignored.

My claims should be properly considered even if I did not attend hearing.

4.    Tribunal does not consider whether the delegate dealt with my case properly.

46    The applicant’s oral submission was limited to a submission that he thought that the Tribunal did not consider his application “seriously” and the Tribunal did not consider that he would be “persecuted” if he returned to China (at PJ [26]).

47    The primary judge found that the decision of the Tribunal to proceed with the hearing in the absence of the applicant was reasonable given (a) the applicant had been invited to the hearing, was on notice of its importance and the consequences of not attending, (b) without explanation did not attend the hearing, and (c) moreover did not now offer any evidence or submission that might indicate that the Tribunal’s exercise of discretion to proceed with the hearing was unreasonable (at PJ [35]).

48    The primary judge found that grounds 1 to 3 either misunderstood or misrepresented what the Tribunal had reasoned, and in any event, given the factual findings made by the Tribunal, sought impermissible merits review (at PJ [36]). His Honour was satisfied that the Tribunal’s inability to be satisfied that the applicant fulfilled either of the two relevant criteria for the grant of a Protection Visa “was the inevitable consequence of his, unexplained failure to attend at the Tribunal hearing” (at PJ [43])

49    The primary judge was satisfied that the Tribunal had considered the applicant’s claims, “such as they were, of past harm and did consider whether the applicant would suffer serious or significant harm if he were to return” (at PJ [44])

50    As for ground 4, the primary judge found that as the Tribunal had to conduct its review on a “de novo” basis, that is afresh, it was not required to consider the delegate’s reasoning (at PJ [47]).

C.4.3.    The proposed appeal grounds lack sufficient merit to justify an extension

51    It is convenient to address proposed grounds 1 and 3 together as the question of whether “claims were ignored” and whether claims were “properly considered” invariably overlap.

52    Neither ground has sufficient merit to justify an extension of time to file an appeal.

53    Section 426A, as in force at the time of the decision of the Tribunal, provided:

426A    Failure of applicant to appear before Tribunal

Scope

(1)    This section applies if the applicant:

(a)    is invited under section 425 to appear before the Tribunal; but

(b)    does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

(1A)    The Tribunal may:

(a)    by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

(b)    by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

54    Given the notification given by the Tribunal to the applicant on 24 October 2017 of the forthcoming hearing, the Tribunal was entitled to proceed with the hearing in the absence of the applicant and determine the review of the delegate’s decision sought by the applicant.

55    I am otherwise satisfied, as the primary judge found, that the Tribunal identified and had regard to the claims that the applicant had advanced in his application for a Protection Visa. A claim that has been considered but rejected is not a claim that has been ignored, nor a claim that has not been “properly considered”.

56    Proposed ground 2 also lacks sufficient merit to justify an extension of time to file an appeal or a grant of a leave to raise a ground of appeal not raised before the primary judge. I am not able to discern, and the applicant did not identify, any respect in which the Tribunal had not used “its discretion properly” in any jurisdictional sense. This contention could otherwise only invite some form of impermissible merits review. Moreover, the contention that the law may give the Tribunal “too much discretion” is plainly not a recognised ground of jurisdictional review. The discretion given to the Tribunal is a matter for the legislature, not the judiciary.

57    Nor does ground 4 have sufficient merit to justify an extension of time to file an appeal or a grant of a leave to raise a ground of appeal not raised before the primary judge. The Tribunal’s findings that were unfavourable to the applicant, culminating in the conclusions that it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act, were based on the information provided by the applicant in his application for a Protection Visa, as summarised by the Tribunal at DR [13]. The finding by the Tribunal at DR [20] that the claims made by the applicant were “made in the most general terms and they are unsubstantiated” does not imply that the findings made by the Tribunal were unsubstantiated. Rather, it was a finding on the material before the Tribunal that the claims made by the applicant were unsubstantiated.

D.    Disposition

58    For the foregoing reasons, the application for an extension of time is to be dismissed and the applicant is to pay the costs of the Minister.

59    The Minister sought an order, if he were successful, that his costs be fixed in the amount of $4,500 on the basis that it is an amount significantly less than the amount that could be claimed in a short form bill pursuant to cl 15.2 of Sch 3 of the Rules and less than the Minister’s actual party and party costs. I am satisfied that a fixed sum costs order in that amount is appropriate in this case, given those considerations and that it is an amount that is reasonable and proportionate to the nature of the issues to be determined in this case.

Associate:

Dated:    8 September 2026