AER20 v Minister for Immigration and Citizenship [2025] FCA 1424

Judgment (6 paragraphs)

[1]

The applicant's delay of 393 days is significant. The length of the delay weighs against the granting of an extension of time.

[2]

The applicant's explanation for the delay is wholly inadequate. The applicant's address on the present application was at times difficult to follow. It was, as is common for some litigants in person, a blend of submissions and oral evidence. What the applicant had to say about when they came to understand that they did not have a visa as result of the dismissal of their application before the primary judge was contradictory.
As I have said, the primary judge delivered reasons at the conclusion of the hearing on 13 July 2020. The applicant attended the hearing in person with the assistance of an interpreter. The applicant was present in Court when judgment was delivered. Before me, the applicant acknowledged that they knew at this time that they did not have a visa. To the extent that the applicant gave evidence on affidavit that they only first became aware that they did not hold a visa about a year later, I do not accept that evidence. Even if the applicant had established that this was so, the applicant did not explain why they waited until September 2021 to seek an extension of time to appeal. The only explanation offered is to the effect that the applicant did not, and still does not, understand what they are required to do. The Minister submits and I accept that it is the applicant's responsibility as the putative appellant to make proper enquiries to determine when their appeal is required to be lodged and to ensure compliance with the specified timeframes ( at (Cowdroy J)). There is no cogent evidence before me to demonstrate that the applicant made any enquiries or took any appropriate steps to determine the relevant appeal period: see at (Wigney J).

In the applicant's draft notice of appeal, the sole ground of appeal is as follows:
1. The [Authority] has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).
This ground was not advanced before the primary judge. Accordingly, the applicant would require leave to raise this ground for the first time on appeal.
In considering whether to grant leave to raise a new point, the Court will consider whether it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48] (Kiefel, Weinberg and Stone JJ).
The merit of any proposed new ground is an important consideration to the grant of leave. In assessing whether there is an arguable case for error, the proposed grounds of appeal should be considered at a "reasonably impressionistic level" and the Court should not descend into a fuller consideration of the arguments for and against each ground: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] (Mortimer J) (as her Honour then was).
The applicant's proposed ground concerns an alleged error in the Authority's decision - it is not addressed to establishing error on the part of the primary judge. It raises a new issue in respect of the Authority's decision which was not before the primary judge.
The applicant's proposed ground is not particularised. It is a bare assertion and was not developed or substantiated in the applicant's oral submissions. It is not a criticism of the applicant, given the difficulty they were in as a litigant in person lacking in any real understanding of the legal processes which are engaged, to observe that the applicant could not identify any error on the part of the primary judge. Without in any way detracting from the applicant's plight, the applicant's submissions on this application reduced to the following: first, a complaint and expression of frustration about the fact that the applicant's claims were not believed; secondly, their belief of the risks they would face if returned to Bangladesh; and finally, that they had been in Australia for some 13 years and would face hardship if returned to Bangladesh where their spouse and child still live.
Given that the applicant is not legally represented, I have considered the proposed ground of appeal, even though the applicant did not address any submissions in support of it.
The Authority's complementary protection findings are set out at paragraphs [46]-[50] of its decision. Although those findings are brief, brevity of itself does not amount to error: CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 at [32] (Flick J).
The Authority was correct at paragraph [49] of its decision to conclude that "real risk" and "real chance" involved the application of the same standard: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 (Lander, Besanko, Gordon, Flick and Jagot JJ). The fact that the Authority relied on its previous findings of fact in relation to the applicant's refugee claims when assessing their claims under the complementary protection provisions does not of itself reveal error: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [54]-[56] (Robertson J); MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] (Marshall J).
The Minister submits that the Authority's findings against the complementary protection criteria are free from error and that the Authority was correct assessing the applicant's claims under the complementary protection provisions of the Migration Act 1958 (Cth). I agree.
I am satisfied that the proposed appeal ground is lacking in merit such that it would not attract a grant of leave if an extension of time was granted. My conclusion as to the proposed new ground of appeal being lacking in merit is the weightiest of the matters that I have taken into account against granting an extension of time.

This is an application for an extension of time to appeal from final orders made by the then Federal Circuit Court of Australia on 13 July 2020: AER20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1896 (PJ). The applicant is a citizen of Bangladesh. The applicant arrived in Australia on 13 July 2013 as an unauthorised maritime arrival. On 27 October 2016, the applicant applied for a Safe Haven Enterprise visa (SHEV). The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority affirming a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to grant the applicant a SHEV.
Pursuant to r 36.03(a)(i) of the Federal Court Rules 2011 (Cth), an appellant must file any notice of appeal within 28 days of the date on which the judgment appealed from was pronounced or the order was made. Here, the appeal was required to be filed by 10 August 2020 and the applicant requires an extension of time to appeal. The applicant filed the application for an extension of time on 7 September 2021, some 393 days out of time. The determination of the application for an extension of time has been delayed by reason of the COVID-19 pandemic which resulted in a period in which in-person hearings were deferred.
The applicant was not represented before the primary judge and was not represented on this application.
The first respondent is described as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now known as Minister for Immigration and Citizenship. The second respondent, the Authority, filed a submitting notice save as to costs.
At the hearing on 18 November 2025, an experienced Bengali interpreter was engaged for the purpose of the hearing. The applicant acknowledged that they were able to understand and participate in the hearing with the assistance of the interpreter. While language did not present an obstacle to the applicant, the applicant's participation was necessarily limited by their relative lack of formal education and their unfamiliarity with the legal processes involved. The Court acknowledges the assistance provided by the interpreter in the conduct of the proceeding.
The Court recognises that the consequences for the applicant if this extension application is refused are serious and that as a litigant in person the applicant faces substantial difficulty including by reason of their lack of familiarity with the processes of the Court. The Court acknowledges that the applicant has done their best to present their arguments on this application.
Having carefully considered the whole of the material before me and the competing arguments, I am satisfied that it is appropriate to make an order dismissing the extension application. My reasons are as follows.

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)