Migration Appeal Extension Granted, Leave to Appeal Refused

Original Word Document (101.8 KB) Federal Court of Australia

AYF15 v Minister for Immigration and Citizenship [2026] FCA 384

| Appeal from: | AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 |
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| File number(s): | NSD 206 of 2022 |
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| Judgment of: | SHARIFF J |
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| Date of judgment: | 2 April 2026 |
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| Catchwords: | MIGRATION – application for extension of time and for leave to appeal – no question of principle involved – extension of time granted but leave to appeal refused |
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| Legislation: | Federal Court of Australia Act 1976 (Cth) ss 24(1)(d),

24(1A)

Migration Act 1958 (Cth) s 65

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05(2)(a)

Federal Circuit Court Rules 2001 (Cth) r 13.03C(1)(c)

Federal Court Rules 2011 (Cth) r 35.13 |
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| Cases cited: | AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10

Baig v Minister for Immigration and Border Protection [2014] FCA 855

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

FBS18 v Minister for Home Affairs [2019] FCAFC 196

Fletcher v Minister for Immigration and Citizenship [2013] FCA 874

Khondoker v Minister for Immigration and Citizenship [2012] FCA 654

House v R [1936] HCA 40; 55 CLR 499

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

SZIOE v Minister for Immigration & Citizenship [2007] FCA 1176

SZLSI v Minister for Immigration & Citizenship [2008] FCA 1052

SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15

Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 42 |
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| Date of hearing: | 24 March 2026 |
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| Counsel for the Applicant: | The Applicant appeared in person with the assistance of an interpreter |
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| Solicitor for the First Respondent: | Mr C Wang of Clayton Utz |
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ORDERS

| | | NSD 206 of 2022 |
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| BETWEEN: | AYF15

Applicant | |
| AND: | ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent | |

| order made by: | SHARIFF J |
| DATE OF ORDER: | 2 APRIL 2026 |
THE COURT ORDERS THAT:

1. The application for extension of time filed on 16 March 2022 be allowed.

2. The application for leave to appeal filed on 16 March 2022 be dismissed.

3. The applicant pay the respondents’ costs of the proceeding as agreed or taxed.

4. The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SHARIFF J:

1. INTRODUCTION

1 The following reasons relate to an application for an extension of time to apply for leave to appeal, and leave to appeal, against the decision of the primary judge in AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 (Primary Judgment or PJ).

2 The applicant is a citizen of Sri Lanka who arrived on Christmas Island on 16 August 2012. Shortly thereafter, he applied for a Safe Haven Enterprise (Class XA) subclass 790 visa (SHEV). A delegate refused the grant of that visa.  Eventually, on 11 May 2015, the Refugee Review Tribunal (Tribunal) affirmed the delegate’s decision.  It took almost two years for that application to be determined. The applicant then made an application to the Court below seeking judicial review.  That application was dismissed on 12 December 2016 when the applicant failed to appear at the hearing of his application.  Then, five years later, on 24 September 2021, the applicant filed an application in the proceedings below seeking to reinstate his proceedings before that Court.  The primary judge dismissed that application for the reasons given in the Primary Judgment.

3 On 16 March 2022, the applicant filed an Application for Extension of Time (Extension Application) and Leave to Appeal from the Primary Judgment (Leave Application). For unexplained reasons, these proceedings were not docketed to me until late-December 2025.

4 Irrespective of why there have been various delays (including those caused by the applicant), the position that presently prevails is a most regrettable state of affairs.  The applicant has been in Australia for over a decade, participated in the Australian community, and has made a life here.  He has not returned to Sri Lanka in that time.  The role of this Court is not to determine the merits of the applicant’s claims for a protection visa, but there will be undoubted human implications for the applicant. Equally, what has transpired points to a sorry state of administrative inefficiency (with no one person at fault); it is one that sadly falls well below the community’s expectations as to the efficient administration of justice in the Commonwealth.

5 All of that aside, my sole task here is to determine whether the Extension Application and the Leave Application should be granted, and, if so, whether the appeal should be upheld.  For the reasons that follow, I am satisfied that the Extension Application should be granted but the Leave Application should be dismissed.

1. BACKGROUND

6 As mentioned above, on 16 January 2013, the applicant applied for a SHEV.

7 On 27 September 2013, a delegate of the first respondent (Delegate) refused to grant the SHEV (Delegate’s Decision) pursuant to s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied to the Tribunal for merits review of the Delegate’s Decision. On 11 May 2015, the Tribunal affirmed the Delegate’s Decision to refuse to grant the SHEV (Tribunal Decision) on the basis that it was ultimately not satisfied that the applicant was someone to whom Australia owed protection obligations pursuant to ss 36(2)(a) or (aa) of the Act.

8 On 4 June 2015, the applicant filed an Application for an Order to Show Cause (Show Cause Application) in the Melbourne Registry of the Federal Circuit and Family Court of Australia (Division 2), seeking judicial review of the Tribunal Decision on the basis of the following grounds:

1.    The decision of the Tribunal:

(a)     is affected by an error of law; and

(b)     denied the applicant procedural fairness.

2.    The applicant is currently seeking a legal merits assessment from Victoria Legal Aid.

9 The matter was subsequently transferred to the Brisbane Registry after the applicant relocated to Queensland.

10 On 12 December 2016, when the matter came before the primary judge for directions, the applicant failed to appear and the Show Cause Application was dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

11 Almost 5 years later, on 24 September 2021, the applicant filed an Application in a Case seeking reinstatement of the matter (Reinstatement Application) pursuant to rule 17.05(2)(a) of the (then in force) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules), along with an affidavit explaining his failure to attend the directions hearing on 12 December 2016. That affidavit relevantly stated:

1. I contacted Legal Aid Melbourne to advice I had moved to Brisbane. I required Legal Aid Melbourne to arrange for my case to be transferred to Brisbane registry. Legal Aid Melbourne advised me that Legal Aid has an office in Brisbane and that a lawyer would appear at the hearing listed on 12 December 2016, and that I need not go as I will be represented. I was given a phone number of Legal Aid Brisbane office, but I do not have it now. I was told Legal Aid would contact me about the outcome of my 12 December 16 hearing.

12 It also annexed a draft Amended Application (Amended Application) seeking to replace the grounds of review outlined at [8 ] above with the following:

1.    The AAT found the Applicant is not a witness of truth and the accounts of events on which his protection claims are based were false. [43]

2.    In so finding, the AAT found various claims were either incongruous [28], unconvincing [29], [30]; highly unlikely [29]; highly improbable [31]; improbable [32]; or not, credible [33]. However, these conclusions were unreasonable in the context of the Applicant's claims which were all rational and reasonable.

3.    In so finding, the AAT further reviewed the Applicant's claims and:

a.    Rejected responses when the Applicant's responses were rational and reasonable [34]; [35]

b.    Asserted inconsistent evidence at [38] and [39], when the inconsistency was explained by the Applicant which the AAT unreasonably rejected;

c.    Asserted omissions at [40], when the omission was explained by the Applicant which the AAT unreasonably rejected;

4.     As a result of the above the AAT disbelieved most of the claims [44]-[45], such conclusion being unreasonable, the AAT thereby committing jurisdictional error.

13 Rule 17.05(2)(a) of the FCFCOA Rules relevantly provides that:

(2)    The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party;

14 The primary judge dismissed the Reinstatement Application on 25 February 2022.  In doing so, his Honour considered whether or not it was in the interests of justice to reinstate the Show Cause Application, citing FBS18 v Minister for Home Affairs [2019] FCAFC 196 (Flick, Robertson and Lee JJ): PJ [5]. The primary judge considered the following factors were relevant to the exercise of the Court’s discretion (PJ [6]-[8]):

(a) whether there is a reasonable excuse for the party’s absence;

(b) the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated;

(c) whether the applicant had a reasonable prospect of success in the substantive proceeding, with the grounds to be taken at an impressionistic level; and

(d) any delay in seeking reinstatement.

15 In relation to the first factor, the primary judge considered the explanation provided by the applicant and outlined at [11 ] above. The primary judge found that the applicant’s claim that Legal Aid was attending in his place was “implausible” and was not persuaded that there was a reasonable excuse for the applicant’s non-attendance at the directions hearing on 12 December 2016: PJ [63]; [69].

16 In relation to the second factor, the primary judge found that the considerable delay in the making of the Reinstatement Application occasioned prejudice to the first respondent: PJ [84].

17 The primary judge accepted that “there is authority for the proposition that irrespective of whether a case has merit, the length of delay balanced with the persuasiveness or otherwise of the explanation for it can carry the day and warrant an exercise of discretion to outright refuse relief” and noted that the first, second and fourth factors alone warranted an exercise of discretion against reinstatement: PJ [72]; [85]. However, the primary judge nevertheless considered the third factor having regard to the grounds of review outlined in the Amended Application (see [12 ] above). The primary judge characterised these proposed grounds of review as a “single ground by which the applicant allege[d] that the Tribunal’s assessment of his credibility was unreasonable and that it in turn infected its conclusions such that the whole of its conclusions were unreasonable”: PJ [89]. The primary judge held that:

(a) the Tribunal’s reasons revealed “a very considered assessment of all of the applicant’s claims and an acute intellectual engagement with them”: PJ [97];

(b) the Tribunal’s conclusion with respect to the applicant’s credibility were open to it on the material before it such that the Tribunal Decision was not “illogical or unreasonable”: PJ [99]; [102]; and

(c) the grounds of review in the Amended Application sought to engage the Court in merits review: PJ [100].

18 In relation to the fourth factor, the primary judge observed that the period of delay was “objectively a long period of time”: PJ [73]. Having regard to the fact that the attempts on the part of the applicant to seek legal assistance were better characterised as attempts to regularise his migration status, rather than attempts to seek legal advice in relation to his Reinstatement Application, and that there was a period of at least two years when the applicant took no action with respect to his Reinstatement Application, the primary judge was not persuaded that there was a reasonable explanation for the applicant’s considerable delay in pursuing the Reinstatement Application: PJ [78]-[79].

19 In light of these matters, the primary judge dismissed the Reinstatement Application because his Honour was not persuaded that the interests of the administration of justice called for the reinstatement of the application: PJ [104].

1. EXTENSION AND LEAVE APPLICATIONS

3.1 Extension Application

20 Rule 35.13 of the Federal Court Rules 2011 (Cth) (FC Rules) provides that an application for leave to appeal must be filed:

(a)     within 14 days after the date on which the judgment was pronounced or the order was made; or

(b)     on or before a date fixed for that purpose by the Court from which leave to appeal is sought.

21 The Primary Judgment was delivered on 25 February 2022 such that any application for leave to appeal was to be filed on or before 11 March 2022.  The Leave Application was filed 5 days late on 16 March 2022.

22 In support of his Extension Application, the applicant filed an affidavit containing the following explanation for his delay in filing the Leave Application:

I am aware that I was out of time for a few days and I was in Brisbane from 8 March 2022 till 10 March 2022. I was not well due to the travelling. I had pain in my body and generally unwell for several days after 10 March 2022. As I did not have a Medicare Card and had no available funds, I was unable to go to a doctor. I am able to initiate my Appeal work from 15 March 2022 onwards.

23 The Court may grant an extension of time to seek leave to appeal “in accordance with the accepted principles”, which include, centrally, that the Court must be satisfied that it is “necessary in the interests of the administration of justice to make the order”: SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15 at 14; Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at 12. The applicant bears the onus of persuading the Court that the interests of justice favour the granting of an extension of time: Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56], 93. The first respondent outlined the following factors which the Court ordinarily considers:

(a) the length of the delay;

(b) the explanation given for the delay, and whether any explanation "constitute[s] sufficient grounds for a departure from th[e] general rule";

(c) whether granting the extension would result in any undue prejudice to the Respondent; and

(d) the applicant’s prospects of successfully prosecuting the appeal, if leave were to be granted: see eg SZIOE v Minister for Immigration & Citizenship [2007] FCA 1176 at [26]-27; SZLSI v Minister for Immigration & Citizenship [2008] FCA 1052 at [8]-10. Such prospects are to be assessed on a "reasonably impressionistic" basis: MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at 38.

24 The first respondent accepted that the length of the delay, being five days, was not long.  However, the first respondent submitted that the applicant’s explanation outlined at [22 ] above was deficient in that it did not account for why the applicant failed to file the Extension and Leave Applications between 25 February and 7 March 2022, and that the applicant’s affidavit provided no explanation for why the applicant waited until the relevant deadline to commence preparing the Extension and Leave Applications.

25 Despite the first respondent’s submissions, I am satisfied that the Extension Application should be granted.  I accept the genuineness of the applicant’s explanations for the delay and do not consider the deficiencies alleged by the first respondent to be significant having regard to the limited duration of the delay. Further, the first respondent conceded that allowing the Extension Application was unlikely to result in any undue prejudice.  These are matters that weigh heavily in favour of the grant of the Extension Application.

26 In relation to the applicant’s prospects of success, it is important to bear in mind that these are to be considered on an impressionistic basis. Although the applicant’s grounds are not strong and I have ultimately rejected them, I am satisfied, in an impressionistic way, that the applicant has sufficient prospects of successfully prosecuting his application for leave to appeal, and appeal, to warrant allowing the Extension Application.

27 Accordingly, I am satisfied that it is necessary in the interests of the administration of justice to allow the Extension Application, and I will so order.

3.2 Leave Application

28 It is uncontroversial that pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (FC Act), this Court has jurisdiction to hear and determine an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) exercising original jurisdiction under a law of the Commonwealth, which relevantly includes the Act. However, s 24(1A) of the FC Act provides that an appeal shall not be brought from an interlocutory judgment of the above kind without leave.

29 As the dismissal of the Reinstatement Application under r 17.05(2)(a) of the FCFCOA Rules is “interlocutory in nature” (see eg FBS18 at [2]; Baig v Minister for Immigration and Border Protection [2014] FCA 855 at 3), the applicant requires leave to appeal from the Primary Judgment.

30 Section 24(1A) of the FC Act confers an “unfettered discretion” in “unqualified terms” on the Court: Fletcher v Minister for Immigration and Citizenship [2013] FCA 874 at 18, citing Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 (Sheppard, Burchett and Heerey JJ).  The applicant must satisfy the Court of the twin and cumulative factors outlined in Décor at 398-9, being:

(a) whether the judgment sought to be appealed is attended by sufficient doubt to warrant it being reconsidered on appeal; and

(b) whether substantial injustice will result if leave is refused, supposing the decision is wrong.

31 I am not satisfied that the Primary Judgment is attended by “sufficient doubt” to warrant it being reconsidered on appeal.

32 The applicant proposes to advance a single ground of appeal, being that the court below erred in dismissing his Reinstatement Application.  The particulars in support of that sole ground are as follows:

The Federal Circuit and Family Court of Australia 'the lower Court' erred when it dismissed the Appellant's reinstatement application.

Particulars

i.    [104]

ii.    In coming to the above finding, the lower Court erred when it found the Tribunal's findings were logical and open to it on the evidence before it and so the Tribunal's decision was not illogical or unreasonable [102];

iii.    In coming to the above finding, the lower Court erred when it was not satisfied that even on an impressionistic level the proposed grounds of review do anything other than seek to engage the Court in an attempt at reviewing the merits of the applicant's claims which he asserted to be true but which the tribunal was entitled on the material before it to find were otherwise [103];

iv.    In coming to the above finding, the lower Court erred when it found the Tribunal's decision reveals a very considered assessment of all the applicant's claims and an acute intellectual engagement with them [97];

v.    In coming to the above finding, the lower Court erred when it found there is prejudice to the Minister [84];

vi.    In coming to the above finding, the lower Court erred when it was not persuaded there is a reasonable excuse for the applicant's non-attendance at the case management hearing on the 12 December 2016 [69];

vii.    In coming to the above finding, the lower Court erred when it was not persuaded that there is a reasonable explanation for the considerable delay in pursuing the reinstatement application [79].

33 The applicant failed to file written submissions.

34 In the hearing before me on 24 March 2026, the applicant was given the opportunity to make oral submissions. When asked, the applicant was unable to explain why the primary judge was in error. However, he noted that his lawyer did not attend the hearing in the court below so he was unable to express everything he wanted to express. However, the applicant was represented by Counsel in the court below.

35 The particulars advanced by the applicant comprise conclusory statements that the primary judge fell into error in making various findings or in failing to be satisfied of various matters. Absent written submissions or any other articulation of how the conclusions reached by the primary judge demonstrate error, the applicant’s ground of appeal is lacking in the detail necessary to persuade me that the Primary Judgment is attended by the requisite level of doubt.

36 In any event, I am not satisfied that any error is disclosed in the Primary Judgment.  The primary judge’s decision involved an exercise of discretion. An appeal from such a decision is governed by the principles stated in House v R [1936] HCA 40; 55 CLR 499.  I discern no error consistent with those principles.

37 The Primary Judgment reveals that the primary judge directed himself to the correct legal principles in determining whether the Reinstatement Application should be granted.  The primary judge properly engaged with the applicant’s submissions and reviewed the Tribunal’s Decision in some detail (see eg PJ at [93]-[102]).  I discern no error in the primary judge’s process of reasoning or conclusions that:

(a) the Tribunal’s findings were logical and open to it on the evidence (contrary to particular (ii));

(b) the proposed grounds of review in the applicant’s Amended Application (see [12 ] above) did not do anything other than seek to engage the Court in impermissible merits review (contrary to particular (iii)); and

(c) the Tribunal’s reasons demonstrated a considered assessment of, and intellectual engagement with, the applicant’s claims (contrary to particular (iv)).

38 The primary judge gave cogent and thorough reasons in relation to:

(a) whether there would be prejudice to the first respondent (see PJ [91]-[84]);

(b) the applicant’s reasons for not attending the hearing on 12 December 2016 (see PJ [54]-[69]); and

(c) the applicant’s explanation for his significant delay in bringing the Reinstatement Application (see PJ [70]-[80]).

39 Having regard to the considerable length of the applicant’s delay in bringing the Reinstatement Application, I discern no error in the primary judge’s conclusion that there would be prejudice to the first respondent if the Reinstatement Application was allowed. Moreover, the lack of evidence supporting the applicant’s explanation for his non-attendance at the hearing on 12 December 2016 (see [11 ] above) supported the primary judge’s failure to accept that the applicant had a reasonable excuse for his non-attendance at that hearing. Finally, given that the applicant’s evidence indicated that the legal advice sought by him did not specifically relate to the Reinstatement Application and that Counsel for the applicant in the proceedings below accepted that there was a period of at least two years during which the applicant did nothing (PJ [78]), I am not satisfied that there was any error in the primary judge’s rejection of the applicant’s explanation for his delay in bringing the Reinstatement Application.

40 Accordingly, I am not satisfied that the Primary Judgment is attended by sufficient doubt to warrant its reconsideration on appeal.  As I have reached this conclusion, it follows that I am not satisfied that any substantial injustice will result if leave is refused.

41 The Leave Application should be dismissed.

1. DISPOSITION

42 For the foregoing reasons, I will make orders that:

(a) the application for extension of time filed on 16 March 2022 be allowed;

(b) the application for leave to appeal filed on 16 March 2022 be dismissed;

(c) the applicant pay the respondents' costs of the proceeding as agreed or taxed; and

(d) the name of the first respondent be amended to "Minister for Immigration and Citizenship".

| I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff. |
Associate:

Dated: 2 April 2026

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