Shahedunnisa v Minister for Immigration and Citizenship [2025] FCA 1502

The application for an extension of time and leave to appeal is dismissed. The Minister sought costs in the fixed amount of $5,000 as against the first and second applicants. I am satisfied that the amount of $5,000 is appropriate having regard to the documents prepared and filed in the proceedings, including in particular the Court Book and written submissions, and the oral argument required. I note the amount claimed is less than that provided for by r 40.43 of the Rules.

On 10 May 2023, the applicants sought review of the Tribunal's decision in the Federal Circuit and Family Court of Australia (Division 2). The Minister sought summary dismissal of the proceedings. On 11 July 2024, a Registrar of the Federal Circuit Court made orders summarily dismissing the application with costs: J[15].
On 22 July 2024, the applicants sought review of the Registrar's decision. The application was filed four days outside the seven-day period prescribed under r 21.02(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The applicants advanced the following grounds of review (J[25]):
1. I applied for Regional Employer Nomination (Permanent) (class RN) subclass 187 visa to the department of immigration on 09 August, 2019. My application was refused by department of home affairs.
2. I applied for the review on the decision made by delegate to the tribunal. My employer gave evidence to Tribunal in the favour of my application. However, the tribunal made the decision against my application.
3. I am not satisfied with the decision made by AAT.
4. I believe there is an error; therefore, I want to appeal against the decision in the court. Applicants satisfy cl.187. Immigration department did not grant him visa. I appeal to Hon Court to consider my application and grant me liberty in my case. I strongly believe both parties ie Department of Home Affairs and Administrative Appeals Tribunal fell into Jurisdictional Error by acting unreasonably while assessing my Regional Employer Nomination (Permanent) (Class RN) visa.
Because the application was filed outside of the required time, the applicants required an extension of time. The primary judge dismissed the application, acknowledging that the length of delay was not great and that an adequate explanation for delay had been provided: J[19]. Her Honour gave particular weight to the fact that the application for judicial review of the Tribunal's decision lacked merit: J[20]-[21].
The primary judge's decision was interlocutory in nature and, accordingly, the applicants require leave to appeal.
The applicants did not seek leave to appeal within the prescribed 14‑day time limit within which an application for leave to appeal must be brought - see: Federal Court Rules 2011 (Cth) r 35.13. On 2 September 2024, the applicants lodged the application for an extension of time the subject of these reasons - see: r 35.14. The application was lodged 25 days after the primary judge's decision.
The considerations which may be taken into account in exercising the unfettered discretion to extend time are unconfined. There are no mandatory relevant considerations, either express or implied from the subject-matter, scope and purpose of r 35.14. The Court often considers matters such as: the length of the delay; whether an acceptable explanation for the whole of the delay has been provided; the merit of the underlying application (in the present context, the merit of the application for leave to appeal and, therefore, the merit of the proposed appeal); and the consequences of granting or refusing the extension, including any prejudice to the respondent - see, albeit in a different legislative context: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [11]-[13].
An overarching consideration when determining whether to grant an extension of time is whether injustice may arise by a strict application of the time limit: Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 480; Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30; Finch v Heat Group (No 3) [2017] FCA 64 at [33].
The delay is not particularly significant, although the delay of 11 days should be assessed by reference to the 14-day time limit prescribed by r 35.13 of the Rules. Ms Shahedunnisa explained in her oral submissions that there was some confusion in filing the relevant documents and I accept her explanation for the delay. The Minister properly accepted that there was no relevant prejudice if time were extended. The overriding consideration in the present case is that the application for leave to appeal has no real merit. The proposed grounds of appeal are:

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