EEF19 v Minister for Immigration and Citizenship [2025] FCA 1444

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 Minister relies on a written outline of submissions and oral submissions. The applicant made oral submissions and also handed up written submissions in support of the application at the hearing.
2. The applicant's draft notice of appeal identifies six unparticularised grounds of appeal, five of which advance new grounds that were not raised before the Court below. The applicant would require leave to raise these grounds if the application for an extension of time to commence the appeal is granted.
3. The Minister submits that the extension of time application should be refused as there is no reason to doubt the correctness of the Primary Judgment and an appeal would have no prospects of success. The Minister does not claim any prejudice. The Minister appropriately recognises, that given the relatively short extension that is required, the determinative factor in the circumstances of this application, will likely be the assessment of the merit of the proposed grounds of appeal.

1. On 5 September 2019, the delegate's decision to refuse to grant the applicant a SHEV was referred to the Authority as a fast-track reviewable decision.
2. On 30 September 2019, the applicant, by their agent, made a submission to the Authority which relevantly attached a submission from the applicant, two newspaper articles, a letter from an advocate in Bangladesh and Bangladeshi court documents.
3. In making its decision, the Authority had regard to the material given by the Secretary under s 473CB of the Migration Act 1958 (Cth) (A [3]). In addition to the s 473CB material, the Authority also had regard to the applicant's submission and to a limited extent the documents provided with it on 30 September 2019.
4. To the extent that the submission was directed to why the delegate's decision was wrong, the Authority considered it (A [5]).
5. To the extent that the submission provided hyperlinks to and attached media articles, the Authority examined that material for the purpose of applying s 473DD of the Act as it was required to do. The Authority was not satisfied that the conditions in s 473DD were satisfied and accordingly did not consider this aspect of the materials supplied by the applicant on 30 September 2019 (A [6]-[10]).
6. In relation to the last category of materials supplied on 30 September 2019, the Authority itemised these materials comprising 21 pages and noted that all of the various documents pre-dated the delegate's decision. The Authority then recounted various aspects of the documents and noted that contrary to the information contained in these documents, the applicant had not claimed before the delegate to have been the subject of charges or convictions in Bangladesh and had not provided any explanation as to when the applicant first became aware that the charges had been laid, how and when they obtained these documents or why they were only providing this information on 30 September 2019. Given the Authority's overall concerns about the applicant's credibility, and the late production of the documents, the Authority was not satisfied as to the reliability of the documents. The Authority was not satisfied that the new information was credible personal information about the applicant which was not previously known, and had it been known may have affected the consideration of the applicant's claims. It was also not satisfied that this new information could not have been provided to the Minister before the delegate's decision. In the circumstances, the Authority was not satisfied that there were exceptional circumstances to justify considering the new information in these documents (A [11]).
7. The Authority considered the applicant's capacity to participate in the protection interview, but was satisfied that the applicant was competent to undertake the interview (A [34]).
8. The Authority considered the applicant's protection claims and found the applicant to be lacking in credibility. As a result of the Authority's credibility concerns, the Authority rejected the applicant's material protection claims. Following a detailed review of country information, the Authority was not satisfied that the applicant faced a real chance of any harm on return to Bangladesh and concluded that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act (A [48]-[49]).
9. Upon the same findings of fact, the Authority found that the applicant also did not satisfy the complementary protection criterion in s 36(2)(aa) of the Act (A [52]-[54]).
10. On 2 October 2019, the Authority affirmed the delegate's decision.

1. The applicant applied for judicial review of the Authority's decision and relied on the following two grounds.
2. The first ground essentially alleged that the Authority had breached s 473CB of the Act by failing to invite the applicant to further explain their claims, constituting a denial of procedural fairness. The second ground alleged that the Authority had adopted a "hard attitude" and had failed to consider the applicant's claims.
3. The primary judge observed that the applicant's grounds had to be considered against the backdrop of the "severely constrained" reviews conducted by the Authority, including the limits to obtaining new information (PJ [25]). The primary judge concluded that the applicant's first ground misconceived the statutory background of Part 7AA, Division 2 of the Act (PJ [28]).
4. The primary judge considered that ground two was "very vague" and that there was nothing to indicate that the Authority did not consider each of the applicant's claims, that there was nothing illogical, irrational or legally unreasonable in the factual findings of the Authority, and that the Authority's adverse credit findings were open to it (PJ [29]-[30]). The primary judge found that "no such evidence" had been provided to support an allegation of bias, and that no particulars had been provided regarding the applicant's contention that the Authority failed to assess material so that ground could not succeed (PJ [31]-[32]).
5. The primary judge went on to consider whether there was any error in the nature of that identified in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494, and concluded that the Authority correctly considered the applicant's new material and found that there was no error in the way the Authority dealt with this new information (PJ [33]-[35]). As the applicant was unrepresented, the primary judge reviewed the Authority's decision and did not detect any jurisdictional error that had not been the subject of submissions by the applicant. The primary judge dismissed the application (PJ [36]-[37]).

1. In the present case, the sole explanation provided by the applicant in their affidavit for the delay is that the applicant was ill and was not able to lodge an appeal within the statutory timeframe. The applicant made oral submissions that the illness they were referring to in their affidavit was the coronavirus and that they were very sick. The applicant submits that they went to a doctor, but did not obtain anything in writing. The applicant's oral submissions are inconsistent with the way in which the applicant has sought to explain the delay in their written submissions. There is no reference to the coronavirus or any illness in the applicant's written submissions. The applicant's written submissions instead rely to the applicant's lack of understanding of the review process, partly as a result of a failure of previous representatives to advise of judicial review rights, and personal vulnerabilities which do not include the applicant being of ill health. The applicant's written submissions are very general and give the appearance of being generic in many respects.
2. The explanation for the delay is problematic. On balance, given the inconsistency and generality of the explanation, it weighs against the grant of an extension, but I do not regard it as being of significant weight in the context of the relatively short delay and after giving appropriate allowance for the applicant's appreciation of the legal process.

1. 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).

1. As mentioned, the applicant relies on six unparticularised grounds of appeal, five of which advance new grounds that were not raised before the Court below.
2. The applicant requires leave to rely on the proposed new grounds. The touchstone is whether the granting of leave to raise a new point is expedient in the interests of justice: O'Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319 (Mason J) cited in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ).
3. The Minister opposes the grant of leave on the basis that to allow fresh grounds of attack against an administrative decision being advanced on an appeal from a trial court's judgment is contrary to the legislative scheme that explicitly limits the Court's jurisdiction: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452 at [14] (Perram J). Permitting the prosecuting party to advance fresh grounds on an appeal in a matter of this kind results in this Court becoming the "initial supervisory court" in relation to the Authority's decision, contrary to the express intention of the Act: Minister for Immigration and Border Protection v Aulakh [2018] FCAFC 91; 265 FCR 143 at [107] (Mortimer J). The effect of which would be to omit a layer of appellate scrutiny: AAM15 at [14].
4. The Minister properly accepts that to the extent the proposed grounds of appeal have sufficient merit, it may be expedient in the interests of justice for a grant of leave, particularly noting that the consequences of an adverse outcome for the applicant would be significant.
5. The proposed grounds are unparticularised assertions of jurisdictional error with limited detail as to the specific errors alleged. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J). I will now address each of the six proposed grounds.

1. Draft ground one alleges the Authority's decision was affected by jurisdictional error because the Authority failed to consider the merits of the applicant's case, resulting in crucial factors being left unassessed. The ground is bereft of meaningful particulars.
2. For the reasons given by the primary judge at PJ [29]-[30], the Authority had proper regard to the information referred under s 473CB of the Act and otherwise made findings that were open to it. This proposed ground is without merit. There is no utility in granting an extension of time in respect of this ground.

1. Proposed ground two alleges the Authority erred by not giving adequate weight to the applicant's psychological state at the time of the protection visa interview as an explanation for the inconsistencies in the applicant's evidence.
2. The Authority considered the applicant's capacity at the protection interview but was satisfied that the applicant was competent to undertake the interview (A [34]). The Authority's conclusion in this respect was informed by the fact that the applicant did not state what was wrong with them and did not indicate that their ability to participate in the interview was impaired (A [34]). The Authority accepted that the applicant may have been experiencing "some nerves" at the interview, but that the applicant's inability to recall dates about particular events was because they were not recounting "real life incidents" (A [34]). The Minister submits, and I accept, that the Authority's findings in this respect were reasonably and logically open to it on the material before it. This proposed ground is lacking in merit and would not have prospects of attracting a grant of leave. There is no utility in granting an extension of time in respect of this ground.

1. Proposed ground three alleges the Authority dismissed evidence of the applicant's membership to a particular political group without reasonable grounds.
2. This ground is misconceived because whether the applicant was a member of a particular social group for the purpose of s 5J(1)(a) of the Act was not, itself, a live issue before the Authority. Rather, the Authority found that the applicant did not face a real chance of harm in Bangladesh, for any reason, for the purpose of s 5J(1)(b) of the Act (A [35], [45], [48]). This proposed ground lacks merit. It would not have prospects of attracting a grant of leave and there is no utility in granting an extension of time in respect of this ground.

1. Proposed ground four contends that the Authority took into account irrelevant and subjective considerations. This ground is vague and is not particularised. There is nothing in the Authority's reasons to suggest that it had regard to some consideration that it ought not have considered. This ground, in the form in which it is framed, is incapable of establishing jurisdictional error in the Authority's decision. This proposed ground would not have prospects of attracting a grant of leave. There is no utility in granting an extension of time in respect of this ground.

1. Proposed ground five contends that the Authority's decision is affected by error because the accuracy of interpretation (presumably, at the protection visa interview) was not tested. There is no evidence to suggest that there was any issue with respect to the quality of interpretation. It is the applicant in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). The applicant has not discharged this onus. This proposed ground would not have prospects of attracting a grant of leave. There is no utility in granting an extension of time in respect of this ground.

1. Proposed ground six is a bare allegation that the Authority's decision was "unreasonable". The lack of particularisation is stark. The ground invites impermissible merits review. This proposed ground would not have prospects of attracting a grant of leave. There is no utility in granting an extension of time in respect of this ground.

1. The Minister properly raises the issue of the application of s 473DD of the Act. I refer to paragraphs [14] to [18] above. The primary judge was correct to find that the Authority properly applied s 473DD of the Act in respect of the various sources of information supplied to it under cover of the 30 September 2019 communication (PJ [33]-[35]). The Authority's approach to the task arising under s 473DD was in accordance with the section and consistent with the interpretation of the section by the High Court: AUS17 at [11] (Kiefel CJ, Gageler, Keane and Gordon JJ).

1. For these reasons, notwithstanding the relatively short period of delay, I am satisfied that the proposed grounds of appeal lack sufficient merit, and an appeal would have no prospects of success. The application for an extension of time to appeal is dismissed, with costs. I will make orders accordingly.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.