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[2016] FCA 760
respondent. The application to extend time to file a notice of appeal be dismissed. The applicant pay the costs of the first respondent to be taxed if not agreed.
A Chinese man who had been in the army and police claimed he would be harmed if returned because of events in 1989, a corruption probe, and a government data breach that exposed him. The Tribunal believed some background facts but decided most of his fears were invented to get a visa and refused protection. The Federal Circuit Court said the Tribunal made no legal mistakes. The man tried to appeal but was 128 days late. The Federal Court refused extra time because his appeal papers were too vague, did not point to any actual legal error, and simply re-argued that the Tribunal should have believed him. The case shows that late appeals with no legal merit will not be allowed to proceed.
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2,206 words · generated 24/04/2026
The applicant, born in China on 17 August 1970, arrived in Australia in 2006 on a tourist visa and was detained in February 2014. He lodged a protection visa application on 20 March 2014 claiming a fear of serious harm or significant harm if returned to China. His claims centred on his service in the Chinese People's Liberation Army (PLA) from 1985, during which his unit allegedly refused to shoot at students in the Tiananmen Square protests of 1989, leading to his forced retirement in 1990. He then joined the police force, where he claimed to have been involved in a corruption investigation against the Beijing mayor in 1995, after which he faced targeting, a sabotaged motor vehicle, and employment difficulties. He asserted that authorities secretly prevented him obtaining stable work, that he was forced to sign a document barring departure from China for 20 years (except as a tourist), and that his wife and son had been harmed in accidents or attacks as revenge. Critically, he linked his fears to a departmental data breach in January 2014 that he said exposed his details, although he was not detained until February 2014.
1 cited instrument linked from this judgment.
A delegate refused the visa on 27 October 2014. The applicant applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal). After a hearing on 15 January 2015 conducted with a Mandarin interpreter, the Tribunal delivered its decision on 20 January 2015. It accepted that the applicant had been in the PLA and may have been discharged after the 1989 events, that he had been a police officer from 1990 to 1995 and may have participated in the mayor investigation, and that his son may have been attacked in 2014. However it rejected the balance of his claims as speculative, vague, unconvincing or fabricated to bolster the protection application. The Tribunal found the delay in lodging the visa application, his stated intention to return to China for employment, and the absence of any enforceable undertaking not to leave China all undermined his credibility. It concluded he did not meet the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) and affirmed the delegate's decision.
On 6 February 2015 the applicant commenced judicial review in the Federal Circuit Court, raising four grounds alleging bias, denial of procedural fairness, findings based on no evidence, and ignoring evidence. A second application added a fifth ground essentially repeating complaints about the Tribunal's adverse credibility finding at paragraph 13 of its reasons. At the hearing he raised three further issues concerning the type of visa on which he arrived, his wife's traffic accident, and the data-breach claim. The Federal Circuit Court dismissed the application on 14 September 2015, holding that bias was not made out by mere adverse findings, that the Tribunal had complied with its statutory hearing obligations and rationally considered the claims, that no specific "no evidence" finding had been identified, and that the remaining grounds were impermissible merits challenges.
The applicant then sought to appeal to the Federal Court but filed 128 days out of time under r 36.03(a) of the Federal Court Rules 2011. He required an extension under r 36.05. His supporting affidavit (sworn or affirmed 27 November 2015, filed 11 February 2016) cited detention, lack of English and ignorance of time limits. He did not file a draft notice of appeal or written submissions despite directions. The grounds discernible from the affidavit were that the Federal Circuit Court judge only heard from the respondent's lawyer and that the judge erred by failing to find that the Tribunal had committed jurisdictional error because the applicant faced real risks in China. Gilmour J dismissed the extension application on 29 June 2016, ordering the applicant to pay the first respondent's costs.
Gilmour J's reasoning turned on the fourth Hunter Valley Developments factor—the merits of the proposed appeal—finding it decisive. At [3] the delay of 128 days was accepted as "not insignificant". The applicant's explanation at [4] (detention, language difficulties, unawareness of deadlines) was noted but not found adequate. The Minister did not claim prejudice, removing that consideration from the balance. What remained was the complete absence of merit.
The Court examined both the discernible draft grounds and the underlying Federal Circuit Court judgment. The first proposed ground—that the Federal Circuit Court "was only taking the statement from the Respondent's lawyer"—was rejected because the reasons showed the primary judge had considered the written grounds, the additional written ground, and three further oral grounds raised at hearing. The applicant had been heard. The second ground was characterised at [35] as "an unparticularised assertion of jurisdictional error and is vague and meaningless". It failed to specify what error the Tribunal or the Federal Circuit Court was said to have made. Gilmour J expressly followed the authority in WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 (upheld on appeal) that failure to particularise is itself sufficient to dismiss a ground.
Crucially, at [36]-[37] the Court held that the primary judge had addressed each of the applicant's complaints: bias was not established because an adverse outcome does not equate to apprehended bias; procedural fairness had been afforded by the invitation to a hearing and proper consideration of claims; no specific finding lacking an evidentiary foundation had been identified and the Tribunal's reasons disclosed a rational basis; and the allegation of ignoring evidence was in substance a merits challenge. The Tribunal's rejection of claims as fabricated (for example, the supposed undertaking not to leave China, the sister's job loss, the revenge accidents, and the link to the data breach) were open on the material. Because the proposed appeal simply re-agitated the merits and did not identify jurisdictional error, it enjoyed no reasonable prospect of success. In the absence of merit, the extension was refused at [38].
Prior to this judgment the law on extensions of time in the Federal Court was settled by Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, which required weighing delay, explanation, prejudice and merits. In the migration jurisdiction, courts had repeatedly emphasised that the merits inquiry is not a full rehearing but an assessment of whether the proposed appeal enjoys reasonable prospects of demonstrating jurisdictional error. The requirement for particularised grounds in judicial review was also established; WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] (affirmed on appeal) held that unparticularised grounds could be dismissed outright. The distinction between jurisdictional error and merits review had been reinforced in numerous authorities, as had the principle that an adverse credibility finding, without more, does not demonstrate bias or procedural unfairness.
This decision did not change the law. It applied the existing Hunter Valley framework strictly in a case where the merits factor was overwhelmingly negative. After the decision, the same principles continue to govern extension applications in migration appeals. The judgment underscores that self-represented applicants in detention face no lesser obligation to articulate identifiable legal error. It confirms that vague references to "real risks when back to China" or complaints that the Tribunal "does not believe" the applicant will not suffice. The decision forms part of a consistent line of authority that protects the finality of Tribunal decisions where no jurisdictional error is apparent on the face of the reasons.
Paragraph 2 contains the foundational statement of principle: "The principles generally applicable upon such an application are well established. They include that consideration be given to the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay and the merits of the proposed appeal." In plain English the Court is saying there is a well-known checklist; all four boxes must be looked at, but one very poor score (here, the merits) can outweigh the rest.
At paragraph 3 the Court states simply: "The length of the delay in this case is 128 days, which is not insignificant." Translation: four months late is a serious problem and needs a very good excuse.
Paragraph 33 is decisive: "The Minister submits, correctly in my opinion, that neither ground of appeal identifies any jurisdictional error on the part of the Tribunal and no appealable error in the judgment of the Federal Circuit Court." Plain English: the applicant's appeal papers do not point to any legal mistake by either the Tribunal or the judge below; therefore the appeal cannot succeed.
Paragraph 35 applies earlier authority: "Failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969." Translation: if you do not spell out exactly what legal error you say occurred, the Court is entitled to throw the ground out without further analysis.
Paragraph 37 concludes: "The primary Judge held correctly, in my opinion, that there was no jurisdictional error disclosed in the Tribunal's reasons for decision. The applicant has not otherwise established any appealable error. The proposed grounds lack any merit." In everyday language the Court is confirming that the Tribunal's detailed findings on fabricated claims, delay in applying for protection, and lack of connection to the data breach were lawful, and the appeal adds nothing new.
This precedent is triggered whenever an applicant in the migration jurisdiction is substantially out of time for lodging an appeal to the Federal Court, offers an explanation limited to general assertions of detention, language barriers or ignorance of rules, and advances grounds that are either unparticularised or amount to no more than complaints that the Tribunal should have accepted the applicant's version of events. It is especially relevant where the Tribunal has made detailed adverse credibility findings—such as labelling claims "fabricated", "speculative" or "vague"—and the applicant cannot point to a specific legal error (failure to ask a required question, consideration of irrelevant material, denial of a statutory hearing right, or absence of any logical connection between evidence and conclusion). The precedent applies with full force where the applicant has already had the benefit of a Part 7 hearing with an interpreter, has run additional oral grounds before the Federal Circuit Court, and the draft notice of appeal does not identify any paragraph of the Tribunal reasons said to reveal jurisdictional error. It is not engaged by short delays with compelling explanations or by appeals that articulate a clear arguable legal mistake.
The judgment has been treated as a routine but firm application of the Hunter Valley Developments checklist and the WZATH line of authority on particularisation. Subsequent single-judge decisions in the Federal Court have cited it for the proposition that the merits inquiry is decisive and that vague assertions of "bias" or "failure to consider evidence" will not overcome a significant and poorly explained delay. It has been followed for the narrow proposition that an applicant's dissatisfaction with credibility findings on claims of past political or official targeting, data-breach fears, or family harm does not, without more, demonstrate jurisdictional error. The decision reinforces that the Federal Circuit Court's task is supervisory only; where that Court has examined each ground, considered additional oral submissions, and found rational reasons supporting the Tribunal outcome, an appellate court will not grant an extension merely to allow re-argument of the facts. The citation of WZATH both at first instance and on appeal within the same paragraph [35] has been used to illustrate the consistent approach across both courts to unparticularised grounds in migration litigation.
Several narrow questions remain live. First, how strong an explanation for delay must be before it can outweigh a merits assessment that is marginal rather than wholly absent; the present case involved merits that were entirely lacking, so the weight to be given to a more compelling explanation in a borderline-merits case is not settled by this judgment. Second, the precise content required to "particularise" a ground when the applicant is self-represented, in detention, and relying on a non-English first language; Gilmour J found the grounds here so general as to be meaningless, but the boundary between adequate and inadequate particularisation in such circumstances is not exhaustively defined. Third, the extent to which a Tribunal's express acceptance of discrete historical facts (PLA service, possible discharge after 1989, police employment, a son's attack) can itself generate an obligation to give greater weight to downstream claims of ongoing risk; the Court treated the fabrication findings as dispositive, but the precise interplay between accepted facts and rejected inferences remains open to argument in future cases. Finally, whether a data-breach claim that post-dates the applicant's detention can ever engage Australia's protection obligations where the Tribunal finds the subsequent family harm to be unrelated criminality; this decision treats that as a factual matter, leaving open whether any legal error could arise if country information or other evidence were overlooked. These questions illustrate the continuing tension between the statutory finality of Tribunal decisions and the supervisory jurisdiction of the Federal Courts.
GILMOUR J: 1 The applicant seeks an extension of time to file a notice of appeal against a judgment of the Federal Circuit Court delivered on 14 September 2015. The notice of appeal was not filed within 21 days of the Federal Circuit Court's judgment as required under r 36.03(a) of the Federal Court Rules 2011 (Rules). Accordingly, the applicant requires an extension of time under r 36.05 of the Rules. 2 The principles generally applicable upon such an application are well established. They include that consideration be given to the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; Quan v Minister for Immigration and Border Protection [2013] FCA 1239 at [22]; Satera v Nelson [2011] FCA 1470 at [7]. 3 The length of the delay in this case is 128 days, which is not insignificant. 4 The application is supported by the applicant's affidavit earlier sworn or affirmed (it is not clear which) on 27 November 2015, but not filed until 11 February 2016. In that affidavit, the applicant states that the delay was by reason of him being in detention, that he does not understand English and was not aware of the applicable time limits. 5 The first respondent (Minister) does not assert any prejudice by reason of the delay. Rather, he submits that the proposed notice of appeal has no reasonable prospect of success and for that reason the application for an extension of time ought to be refused.
Background and applicant's claims 6 The following background and the applicant's claims are drawn from the Minister's written outline of submissions. They are not controversial. 7 The applicant, who was born on 17 August 1970 in the People's Republic of China (China), lodged an application for the visa on 20 March 2014. In a personal statement submitted in support of the visa application he claimed that he was fearful of returning to China as he had been "betrayed" by the Department of Immigration and Border Protection due to his personal information being "leaked to out to the public". 8 The applicant claimed that he had joined the Chinese People's Liberation Army (PLA) in 1985 and that, although deployed to the area, his troop refused to shoot at students in the Tiananmen Square protests in 1989. Due to his sympathising with the students during this incident he was "forced to retire" in 1990 and he joined the Chinese People's police force. 9 He claimed that in his role in the police force he saw "too many injustice and inhuman interrogations" and quit in 1995. The applicant was unable to obtain stable employment and due to financial pressures (after his subsequent marriage and birth of his child) he came to Australia in 2006 on a tourist visa. 10 The applicant was detained in February 2014 and claims that his details were revealed on the Department's website (Data Breach). He claims that his son was subsequently hurt due to "unknown reasons" and was being kept under observation at a hospital. 11 The applicant expanded his claims for protection in an interview with a delegate of the Minister on 25 June 2014 and specifically claimed that: (1) He lost his employment with the police due to being involved in a corruption investigation against the Beijing mayor in 1995; (2) Whilst on the police force he was involved in a motor vehicle accident where his brakes failed. He considered this was an attempt on his life by the supporters of the former mayor; (3) Due to his involvement in the PLA and police force he was labelled an employment risk and this resulted in him being unable to obtain steady employment; (4) If he returned to China he would be targeted by the government due to his unit's non-involvement in the 1989 protests; (5) When he was discharged from the police force he was required to sign a document stating he would not depart China for 20 years except as a tourist; (6) His wife was injured in a traffic accident which he claimed could have been carried out as an act of revenge by criminal or government elements; and (7) He would be detained and questioned upon his return to China by the Public Security Bureau (PSB). 12 On 27 October 2014 a delegate of the Minister refused the grant the visa. On 4 November 2014 the applicant lodged an application for review with the then Refugee Review Tribunal. 13 On 19 December 2014 the applicant was invited to a rescheduled hearing before the Tribunal to give evidence and present arguments. A hearing took place on 15 January 2015 at which the applicant gave evidence and presented arguments with the assistance of a Mandarin interpreter.
Tribunal decision 14 In its decision dated 20 January 2015, the Tribunal accepted, in whole or part, a number of the applicant's claims including that: (1) He took no part in the events at Tiananmen Square and that he may have been discharged from the PLA as a result. (2) He was employed as a police officer from 1990 to 1995 and that he may have been involved in the investigation of the former mayor. However it did not accept that he was targeted as a result of such investigation. (3) He came to Australia for employment purposes. It did not accept that this was due to him being regarded as an employment risk or to targeting by the mayor's family. The Tribunal found his claims in that regard vague and unconvincing and that they had been fabricated for the purpose of his protection application. 15 However the Tribunal rejected entirely the applicant's claims: (1) That after discharge from the army the authorities were secretly preventing him from obtaining permanent employment and considered that such a claim was "speculative and without any foundation" and was further contrary to his evidence that he was able to obtain employment as a police officer. (2) That he signed a document undertaking not to leave China (except as a tourist) since there would be no way of the authorities enforcing it in the event he decided to remain outside China for a long period. (3) Concerning his sister losing her job in 2002 and found that he had fabricated the claim in an attempt to bolster his claims for protection (4) To fear harm from recently released criminals that he may have arrested prior to 1995 or that his wife's motor vehicle accident was carried out as an act of revenge by criminal or government elements. It was noted that the applicant's evidence was that such claim was based on supposition. (5) In relation to the motor vehicle accident and found that this claim was "fabricated in an attempt to bolster his protection claim". 16 The Tribunal further found: (1) That the delay in the applicant applying for a protection visa, his claims that he departed China for employment reasons and that he planned to return to China undermined the veracity of his claims for protection. (2) That, as the applicant was not detained until 6 February 2014, he was not part of the Data Breach which resulted in the release of the names and details of persons in immigration detention on 31 January 2014. (3) While it accepted that the applicant's son may have been attacked by unknown persons in February 2014, it considered that this was an unrelated criminal matter. 17 Accordingly, the Tribunal found that the applicant did not satisfy either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the Migration Act) and the decision under review was affirmed.
Proceedings in the Federal Circuit Court 18 The history of these proceedings, which is not controversial, are drawn from the Minister's written submissions. 19 On 6 February 2015 the applicant filed an application for judicial review in the Federal Circuit Court of Australia. The applicant relied on the following grounds of review: (1) Both Minister for Immigration and Border Protection and Refugee Review Tribunal have bias against me as I was deprived of the benefits of doubts. (2) Both Minister for Immigration and Border Protection and Refugee Review Tribunal have denied me procedural fairness by failing to provide adequate reasons for finding of facts. (3) Both Minister for Immigration and Border Protection and Refugee Review Tribunal have made an offensive finding based on no evidence. (4) Both minister for Immigration and Border Protection and Refugee Review Tribunal have ignored the evidence and facts. 20 The applicant also relied upon an additional ground raised in a second application, pleaded as follows: (1) The Second Respondent owns me nature justices in reaching the decision. Particulars (i) On paragraph 13 of the decision record, the Second Respondent state: "Whilst the Tribunal accepts that the applicant was employed as a police officer during the period claimed, and that he may have been involved in the investigation of the former mayor, it does not accept his claims, to have been targeted as a result." (ii) The Second Respondent clearly demonstrated it does not believe I have been targeted by the former mayor's family and supporters. (iii) I have provided the details of my dangerous situation in that particular, however, the Second Respondent without if finding of fact concluded my claims as to my involvement in my police careers. (verbatim and without correction) 21 In relation to ground 1, alleging bias, his Honour accepted the first respondent's submission that bias must be clearly alleged and properly proven. His Honour further stated that there was no conduct identified in respect of which it is alleged there was a basis for finding bias, other than the adverse decision by the Tribunal, which his Honour observed was not a basis upon which a fair-minded lay observer might reasonably apprehend that the Tribunal did not bring an independent and impartial mind to determining the matter. 22 As to the second ground, alleging procedural unfairness, his Honour concluded that the Tribunal invited the applicant to a hearing in accordance with the statutory requirements and that the Tribunal properly considered the applicant's claims. His Honour further considered that it was open to the Tribunal to make adverse findings on the material before it. 23 Concerning ground 3, his Honour found that no specific finding was identified by the applicant that was said to be the subject of the absence of evidence or logical basis to support that finding. Nevertheless, his Honour concluded that the Tribunal's reasons demonstrated a rational foundation on the material before it for the adverse findings it reached and in respect of its conclusion that the applicant was not a person to whom Australia owed protection obligations to under section 36(2)(a) or (aa) of the Act. 24 As to ground 4, his Honour held that the applicant had not identified any evidence or fact which it is alleged the Tribunal failed to have regard to and in substance was an impermissible challenge of the merits of the decision. 25 As to the additional ground raised in the second application, his Honour accepted that this ground was, in substance, a repetition of the earlier grounds insofar as they related to a challenge to the Tribunal's adverse findings. 26 His Honour then considered three further grounds raised by the applicant at the hearing. 27 The first concerned the proposition that the applicant arrived in Australia on a business visa rather than a tourist visa. His Honour found that there was no error apparent on the material before the Tribunal. 28 Second, where the applicant raised a claim concerning his wife being involved in a traffic accident that he suggested had not been made to the Tribunal, his Honour concluded that it was apparent that his wife's traffic accident was one of the claims raised before the delegate and accordingly it was open to the Tribunal, and proper, to deal with that claim. 29 Third, the applicant raised a concern that his details may have been released whilst in detention, and that his son had been injured, which caused him to doubt whether his details were released. His Honour referred to the Tribunal's findings at [21]-[22] and found that the Tribunal had dealt with this issue. 30 His Honour was ultimately not satisfied that the Tribunal's decision was infected by jurisdictional error.
The draft notice of appeal 31 The applicant has neither filed a draft notice of appeal containing the proposed grounds of appeal, nor has he complied with directions made on 18 February 2016 that he file and serve a written outline of submissions no later than 10 business days before the hearing date. 32 Insofar as the proposed appeal grounds are discernible from the applicant's affidavit sworn/affirmed on 27 November 2015, they are as follows: I am seeking review for the following reasons: 10. Federal Circuit Court judge was only taking the statement from the Respondent's lawyer. 11. Federal Circuit Court judge erred, by failing to properly consider Refugee Review Tribunal (now named Administrative Appeals Tribunal) fell into jurisdictional error. The applicant has real risks when back to China. (verbatim) 33 The Minister submits, correctly in my opinion, that neither ground of appeal identifies any jurisdictional error on the part of the Tribunal and no appealable error in the judgment of the Federal Circuit Court. 34 The evidence does not justify the applicant's assertion that the Court below received submissions only from the Minister's lawyer. A review of the judgment discloses that the Court considered several additional grounds of review raised by the applicant at the hearing. The applicant was not denied the opportunity to be heard. 35 Ground two is, I agree, an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969. 36 The primary Judge considered each ground of review relied upon by the applicant in the original application filed, a subsequent application filed and in oral submissions by him at the hearing. 37 The primary Judge held correctly, in my opinion, that there was no jurisdictional error disclosed in the Tribunal's reasons for decision. The applicant has not otherwise established any appealable error. The proposed grounds lack any merit.
Orders 38 The application for an extension of time will be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.
WZAVW
Minister for Immigration and Border Protection
The application to extend time to file a notice of appeal be dismissed. The applicant pay the costs of the first respondent to be taxed if not agreed.