CWU20 v Minister for Immigration and Citizenship [2025] FCA 1445

In considering whether to exercise the discretion to extend time under s 36.05 of the Federal Court Rules 2011 (Cth), and recognising that the Court's discretion is unconfined and that each case turns on its own facts, relevant considerations generally include: the length of the delay; the applicant's explanation for the delay; whether the application for review would have any prospects of success if an extension of time were granted; and the prejudice, if any, which the respondent might suffer if an extension were granted: Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [26] (Siopis, White and Perry JJ); Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348-9; Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32] to [39], per Griffiths J (with whom Edmonds J agreed).

1. The applicant sought judicial review of the Authority's decision by the then Federal Circuit Court of Australia. The applicant relied on two grounds of appeal alleging jurisdiction error by the Authority (PJ [13]). Ground one alleged that the Authority did not determine whether the Applicant was a national of Bangladesh solely by reference to the laws of Bangladesh. Ground two alleged that the Authority made factual assumptions and conclusions that were not supported by evidence and failed to articulate the circumstances under which an undocumented person can be returned to the receiving country.
2. The primary judge considered a preliminary issue arising from the inadvertent disclosure of the applicant's identity and the parties were invited to provide supplementary submissions in relation to any action that the Court should take including in relation to the potential breach of s 91X of the Migration Act 1958 (Cth) (PJ [4]). After considering the decision in AVN20 v Federal Circuit Court of Australia [2020] FCA 582 (Kenny J), the primary judge concluded that the s 91X breach did not give rise to a requirement that the Court remit the matter to the Authority for further reconsideration (PJ [7]-[8]).
3. The primary judge found that no jurisdictional error was established in relation to ground one (PJ [29]-[32]) or ground two (PJ [33]). The primary judge concluded that the Authority was entitled to proceed in the way that it did on the findings that were open to it on the evidence that was before it (PJ [32]).
4. On 25 June 2020, the primary judge dismissed the application (PJ [34]). The applicant's solicitor was present at the time of delivery of judgment.

1. I will now address the considerations which are relevant to the exercise of the discretion in the present application.

1. The applicant's delay is 697 days. In the context of the statutory scheme, the extension required is very long. The length of the delay weighs heavily against the grant of an extension of time.

1. The explanation for the delay given by the applicant in their submissions at the hearing differs from the explanation given in their affidavit which was read on this application, and which was filed at the time the application was filed. As is not unusual for litigants in person, the applicant's address was a blend of submissions and oral evidence. In the course of addressing the Court the applicant ultimately disavowed the contents of their affidavit. The applicant suggested that the solicitor who was instructed in the proceeding below prepared the affidavit and that the information in the affidavit was either not correct or not complete. On the face of the affidavit and the application itself, the applicant is identified as the person who prepared the documents. There is no legal representative for the applicant identified on the face of the documents. The affidavit is signed but not witnessed. In the circumstances and given the challenges the applicant has in navigating the procedural requirements, I will consider the alternative explanation which the applicant offered at the hearing.
2. The applicant's explanation offered at the hearing was to the following effect. The applicant was aware of the primary decision. The applicant went to see the solicitor that had acted for them in the proceeding below. The applicant says that the solicitor told the applicant that the applicant had to commence an appeal within 28 days. The applicant says that they instructed their solicitor to file an appeal. Over a prolonged period, the applicant says that they made several inquiries of their solicitor but heard nothing. The applicant felt disheartened and was tired of waiting. The applicant acknowledged that they "waited too long". The applicant eventually sought to make the present application themselves without legal representation. The applicant's explanation is inconsistent with the account given in their affidavit, and with the assertion at the hearing that the documents filed in this application were prepared by a solicitor.
3. Doing the best I can, I find that consistently with what the applicant said at the hearing that the applicant was aware of the primary judge's decision relatively proximately to the date on which it was delivered and was also aware at or about that time that they had 28 days to file any appeal. The applicant's account of what happened during the very long period that followed does not provide an adequate explanation to justify granting an extension of time, that is particularly so having regard to the other factors that weigh against the grant of an extension. I consider that this factor weighs against the grant of an extension of time.

1. The Minister does not submit that there is any specific prejudice to the Minister if the extension is granted. I give this consideration neutral weight on this application.

1. The draft notice of appeal comprises the following proposed grounds of appeal (as written):
   1. The decision of the honourable court below is erroneous as the court failed to consider that the decision of the IAA affected by jurisdictional error.

Particulars: The IAA failed to consider merits of my application as put forward in completed which resulted in crucial factors regarding my application not being assessed and considered against the relevant criteria.

2. The decision of the Court below is effected by jurisdictional error.

Particulars: I was subject to data breach at the Court below and hence the court has made no reference as to the risk I will face of such data breach and dispensed its responsibility by altering my pseudonym.

1. Unsurprisingly given the way in which the proposed grounds are expressed, and allowing for the applicant's lack of understanding of the parameters of an appeal such as this, the applicant did not appear to be familiar with the proposed grounds of appeal. As the applicant does not have the benefit of legal representation or any other form of assistance, I have done my best to consider the proposed grounds of appeal and the substance of what the applicant said during the hearing.

1. As to proposed ground one, it does not in substance address any jurisdictional error on the part of the primary judge. Proposed ground one raises a new issue in respect of the Authority's decision which was not 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).
2. The Minister submits that proposed ground one is a bare assertion which has not been particularised in any meaningful way. The applicant has not offered any explanation for their failure to raise this ground before the primary judge in circumstances where they were represented in the proceedings below.
3. At the hearing, the applicant was unable to identify any factors which were not assessed or considered by the Authority. My strong impression was that the applicant was not conversant with the reasons for the Authority's decision or with the reasons for judgment given by the primary judge. The applicant's submissions were made with a view to appealing to the compassion and mercy of the Court based on their belief of the risks that they will face if they are returned to Bangladesh. If the Court granted the extension of time and the corresponding leave to appeal, the Court would not have power to decide the appeal on compassionate grounds.
4. An appeal in a matter such as this is directed to the correction of error. It is fundamental that error be identified. The Authority had regard to the applicant's claims, set out the applicable law and considered the merits of the applicant's visa application by reference to the relevant criteria. I am satisfied that proposed ground one does not have sufficient merit to support a grant of leave and an extension of time would be futile.

1. Proposed ground two is premised on a misapprehension of the role of the court below. The particulars to this ground are predicated on a misapprehension that the court below was required to undertake afresh an assessment of whether the applicant satisfied the assessment criteria for a protection visa by reference to the intervening data breach that had occurred while the applicant's review application was pending before that court. That is not correct. It conflates the roles of the executive and the judiciary.
2. No error has been demonstrated in relation to the primary judge's approach to the issue concerning a s 91X breach. The approach was in accordance with authority: see the comprehensive review of the relevant authorities by Kenny J in AVN20 at [93]-[112]. The primary judge cited the following passage of AVN20, which exposes the existence of the appropriate avenues that were available to the applicant to ventilate a claim based on the data breach as being relevant to the assessment criteria for a protection visa (at [111]):

It does not follow from the fact that s 91X is a duty of imperfect obligation that a person whose name is published in breach of the prohibition in s 91X can do nothing, though believing that the publication has given rise to a further need for him or her to obtain asylum in Australia. Section 48B of the Migration Act would permit such a person to request the Minister to allow him or her to make a further protection visa application. Further, under s 417 the Minister may substitute a more favourable decision for a Tribunal decision in the circumstances there set out: cf ss 351, 195A. Under provisions such as these, it is, however, for the executive branch of government, not the courts, to decide that the person's position should be reconsidered and ultimately whether permission to remain in Australia should be given.

1. The primary judge appropriately referred to the potential remedies available to the applicant to pursue any claim based on the s 91X breach (PJ [7]).
2. Proposed ground two does not have merit and would not attract a grant of leave if an extension of time was granted.

1. Having considered in the circumstances of this application, each of the four factors identified above, I have concluded that none of the factors alone or in combination, establish that it would be in the interests of justice to grant an extension of time. The application for an extension of time is dismissed with costs. I will make orders accordingly.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.