Chalissery v Minister for Immigration & Citizenship [2025] FCA 923

1. Rule 36.03 of the Federal Court Rules 2011 (Cth), provides that an applicant must file a notice of appeal within 28 days of the judgment or order from which the appeal is brought. Judgment in the present case was delivered on 30 August 2022, however no notice of appeal was filed within time. An application for an extension of time was filed on 29 September 2022, two days after the time to file a notice of appeal expired.
2. The application for an extension of time was accompanied by an affidavit sworn not by the applicant but by a friend of the applicant, apparently on behalf of the applicant. No objection was taken to the affidavit.
3. The affidavit identified three bases for the delay in filing the application:

(a) The applicant had broken his leg in July 2022 which impaired his ability to travel to see lawyers in person. He could not communicate with his lawyers because his communication with his lawyers was through a friend and there were language barrier difficulties;

(b) The applicant's inability to directly communicate with legal counsel post-judgment (which is the same reason as set out in (a) above); and

(c) A general claim that further time was needed to "make a proper appeal".

1. In CKT20 v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2022] FCAFC 124; (2022) 294 FCR 318 (Katzmann, Charlesworth and Burley JJ), the Full Court set out four primary factors for consideration that guide the exercise of discretion under FCR 36.05:

(1) The length of delay;

(2) The reasonableness of the explanation for that delay;

(3) Any prejudice to the respondent; and

(4) The prospects of success of the proposed appeal.

1. As to the last of the four factors, if any proposed appeal has no reasonable prospects of success, the Court will not grant an extension of time: CKT20 [17].

1. The Minister submits that the delay in lodging the appeal, although short, does not warrant an extension of time being granted. The Minister accepts that the delay was minor and that there is no identifiable prejudice to the Minister arising from the delay.
2. A lack of prejudice is essentially neutral given that factor alone is not sufficient reason for granting the application to extend time: Naveed v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1332, [38] (Perry J).
3. The Minister identifies two matters that the Minister submits weigh against the granting of any extension of time.
4. First, the applicant failed to file a draft notice of appeal in accordance with FCR 36.01(1) or 36.01(2), or as required by FCR 36.05(3)(d). Consequently, the Minister submits that the Court can be satisfied that the primary judge did not err, particularly in circumstance where no appellable grounds have been advanced.
5. I do not accept that the absence of a draft notice of appeal does inevitably lead to the conclusion that the primary judge did not err, however its absence carries significant weight.
6. Second, the Minister points to the applicant's failure to provide an adequate explanation for the extended delay in not filing a draft notice of appeal. The Minister submits that this prolonged inaction undermines the credibility of the applicant's explanation and weighs heavily against the extension.
7. It is certainly the case that there is no explanation for the failure to file a draft notice of appeal. As I have noted, the absence of a draft notice of appeal in this case carries significant weight.
8. Before the primary judge, the applicant relied on s 359AA(1) of the Act, which provides that the Tribunal must disclose to an applicant the clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. The applicant contended that the Tribunal failed to inform him that the breach of cl. 8107(3)(b) would serve as the foundation of its affirmation of the decision to cancel the applicant's visa such that he was denied procedural fairness.
9. The primary judge reviewed the transcript before the Tribunal observing that:

(a) The Tribunal advised the applicant clearly that he would be permitted to submit supporting documentation post-hearing; [J4]

(b) The applicant acknowledged that he had not been employed in a sponsored position for over sixty days; [J5]

(c) Although the applicant stated that his employer wished to sponsor him, he conceded no sponsorship letter had been provided; [J6]

(d) The Tribunal clarified that sponsorship was legally distinct from mere employment, a point the applicant appeared to accept; [J6]

(e) On further questioning, [J7-J8] the applicant revealed that he had in fact been working at the Kathrine RSL, but admitted the employer "didn't sponsor [him]"; and

(f) The Tribunal had encouraged the applicant to submit additional material to address these deficiencies. [J10]

1. The primary judge also rejected the applicant's procedural fairness submission on the basis that the applicant had been made aware of the need to provide evidence of a sponsored position, not merely employment in general and that the applicant was in breach of the visa condition.
2. The primary judge concluded that these exchanges counted against the submission that the applicant had been denied procedural fairness.
3. The applicant also contended before the primary judge that the Tribunal did not alert him to the fact that the applicant needed not only a new employer but that the employer needed to be an approved sponsor. The primary judge did not accept that contention, finding to the contrary. The primary judge was correct to in doing so.
4. There is no issue that no evidence of sponsorship was provided by the applicant.
5. Next, the Minister submits that, even if the Court were to consider waiving the strict compliance with FCR 36.05(3)(d) under FCR 1.34, nonetheless it is incumbent upon the applicant to demonstrate that the primary judge fell into appellable error. The Minister refers to AFE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 162 at [24] (Katzmann J) where her Honour observed:

An appeal to this Court from the Federal Circuit Court is not a hearing de novo (or new hearing) in which the case agitated below can be run afresh with no regard to the original findings. It is an appeal by way of re-hearing and the task of a court in an appeal by way of re - hearing is the correction of error: Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [21] -[22] (Allsop J, Drummond and Mansfield JJ agreeing); SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11]. It is therefore incumbent on an appellant to persuade the Court that the primary judge fell into appealable error. The lodgement of an appeal is not an opportunity for an appellant to have another shot at the decision under review.

1. The Minister points to the applicant being in clear breach of visa condition 8107(3)(b). The Minister observed it is undisputed that at the time the applicant appeared before the Tribunal, he had been without sponsored employment for a period of 677 days. On that basis, the Minister submits there is no appellable error and any appeal is without merit.
2. In affirming the Tribunal's decision, the primary judge said at [11]:

It is clear to me, reading that material, that there could be little doubt in the applicant's mind that the task facing him was not simply to provide a letter from his then employer that he was employed but to provide evidence that he had a sponsorship. In other words, employment from an approved sponsor under the 457 scheme. I am not satisfied there was any unfairness to the applicant. I am not satisfied that there has been any jurisdictional error, whether through a misrepresentation by the Tribunal member that the applicant relied on or any other deficiency in setting out the required clear particulars pursuant to section 359AA. The application is dismissed.

1. Notwithstanding the lack of prejudice, the short delay and an explanation for that short delay, there is no explanation as to why there is no draft notice of appeal accompanying the application for an extension of time within which to file a notice of appeal against the primary judge's decision.
2. Further, having considered the primary judge's reasons, there is no basis that I can discern that reveals the primary judge fell into jurisdictional error or that the applicant was denied procedural fairness. In those circumstances, any appeal has no prospect of success.
3. It is for these reasons that the application for an extension of time within which to file a notice of appeal is refused.

1. There will be an order that the applicant's application for an extension of time within which to file a notice of appeal is refused.
2. The applicant is to pay the Minister's costs to be assessed if not agreed.
3. The name of the first respondent is changed to the 'Minister for Immigration and Citizenship'.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.