Younes v Minister for Immigration and Multicultural Affairs - Migration Appeal

Original Word Document (114.4 KB) Federal Court of Australia

Younes v Minister for Immigration and Multicultural Affairs [2026] FCAFC 35

| Appeal from: | Younes v Minister for Immigration and Multicultural Affairs [2025] FCA 236 |
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| File number: | NSD 665 of 2025 |
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| Judgment of: | MOSHINSKY, ANDERSON AND DOWLING j J |
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| Date of judgment: | 27 March 2026 |
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| Catchwords: | MIGRATION – application for extension of time to appeal from a decision of the Federal Court – where appeal relies on grounds not argued before the primary judge – whether leave is granted to raise new grounds of appeal – where the proposed grounds are not reasonably arguable – where it would not be expedient in the interests of justice to grant leave to argue the new grounds – where the delay in meeting appeal time limit is short – where the explanation for the delay is not adequate – where applicant would suffer serious personal consequences if extension not granted – where respondent was denied the opportunity to meet the assertions with evidence before the primary judge – application to extend time to appeal dismissed |
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| Legislation: | Migration Act 1958 (Cth) ss 500(1)(ba), 501(3A), 501BA

Federal Court Rules 2011 (Cth) rr 36.03, 36.05 |
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| Cases cited: | Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223

Archer v Minister for Immigration & Citizenship [2026] FCAFC 20

BQQ15 v Minister for Home Affairs [2019] FCAFC 218

Coulton v Holcombe (1986) 162 CLR 1

DIS24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1397

DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; 301 FCR 344

DZAEH v Minister for Immigration and Border Protection [2016] FCA 83

Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12

MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; 284 FCR 152

Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19

Po’oi v Minister for Immigration and Citizenship [2025] FCAFC 192

Rere v Minister for Immigration and Border Protection [2018] FCA 846

Sankey v Whitlam (1978) 142 CLR 1

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588

Younes v Minister for Immigration and Multicultural Affairs [2025] FCA 236

Younes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4430 |
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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: | 51 |
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| Date of hearing: | 11 March 2026 |
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| Counsel for the Applicant: | Mr P Berg |
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| Solicitor for the Applicant: | Milojkovic Visa & Migration Legal Services |
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| Counsel for the Respondent: | Ms R Francois with Ms H Robinson |
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| Solicitor for the Respondent: | Clayton Utz |
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ORDERS

| | | NSD 665 of 2025 |
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| BETWEEN: | MAHMOUD YOUNES

Applicant | |
| AND: | MINISTERFOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent | |

| order made by: | MOSHINSKY, ANDERSON AND DOWLING J J |
| DATE OF ORDER: | 27 March 2026 |
THE COURT ORDERS THAT:

1. The application for an extension of time to appeal is dismissed.

2. The applicant pay the respondent’s costs, such costs to be determined on a lump sum basis.

3. Within 21 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the respondent’s costs.

4. In the absence of any agreement:

(a) within a further 14 days, the respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b) within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c) in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1 The applicant seeks an extension of time to appeal from a decision of a judge of this Court in You nes v Minister for Immigration and Multicultural Affairs [2025] FCA 236 (J). By that decision the primary judge dismissed an application for judicial review of a decision made by the Minister for Immigration and Multicultural Affairs under s 501BA of the Migration Act 1958 (Cth). That decision of the Minister set aside the decision of the Administrative Appeals Tribunal to revoke the cancellation of the applicant’s Class BC Subclass 100 Partner visa: Younes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4430 (T).

2 If the applicant’s extension of time to appeal is granted, he seeks to rely on a proposed notice of appeal that contains one ground. That ground alleges that the Minister, in making his decision under s 501BA of the Act, “failed to give proper, genuine and realistic consideration to the matter”. At the hearing the applicant proposed a further ground of appeal: that the Minister’s power under s 501BA is subject to an implied time limit that was not met. The applicant accepts that both grounds were not argued before the primary judge. He seeks leave to raise the new grounds.

3 For the reasons that follow we would not grant leave to raise the new grounds and we refuse the application to extend time.

Background circumstances

4 The relevant background was set out by the primary judge at J[1] to J[6] and by the Tribunal at T[1] to T[26]. From those reasons we note the following.

5 The applicant is a citizen of the Republic of Lebanon. He arrived in Australia in 2017 at the age of 21 on a Subclass 309 Partner (provisional) visa and was later granted a Class BC Subclass 100 Partner visa (the applicant's visa).

6 On 24 June 2022, the applicant was convicted in the District Court of New South Wales of the offences of “Sexually touch another person without consent-T2” and “Take etc person intend commit serious indictable offence-SI (Attempt)” and was sentenced to an aggregate sentence of four years’ imprisonment, with a non-parole period of two years and six months.

7 On 6 September 2022, the applicant's visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Act (the C ancellation D ecision) because he had a “substantial criminal record”. The applicant requested revocation of the Cancellation Decision on 9 September 2022.

8 On 28 September 2023, a delegate of the Minister decided not to revoke the Cancellation Decision (the Non-Revocation Decision).

9 On 30 September 2023, the applicant sought review of the Non-Revocation Decision in the Administrative Appeals Tribunal (now the Administrative Review Tribunal) under s 500(1)(ba) of the Act.

10 By orders made on 21 December 2023, the Tribunal set aside the Non-Revocation Decision. The Tribunal balanced the protection and expectations of the Australian community with the best interests of the applicant’s minor children in Australia, the applicant’s ties to Australia, and the extent of impediments if he was to be removed. The Tribunal was satisfied that balance resulted in a reason to revoke the cancellation of the applicant’s visa.

11 On 3 June 2024, and contrary to the decision of the Tribunal, the Minister decided to exercise his discretion to cancel the applicant's visa pursuant to the power conferred upon him by s 501BA of the Act (the Minister's Decision). The Minister’s “Decision Page” provides that the Minister made his decision at 4.13 pm in Canberra. The Decision Page provides that the “total time taken in considering submission and attachments” was 1 hour and 40 minutes.

12 On 23 July 2024, the applicant filed an application seeking judicial review of the Minister’s Decision. The applicant filed an amended application on 11 September 2024. The hearing of that application took place on 12 December 2024. On 21 March 2025, the primary judge delivered his reasons and ordered that the applicant’s application be dismissed. The applicant does not seek to appeal the grounds determined by the primary judge.

13 Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), the applicant had 28 days after the date on which the judgment appealed from was pronounced or the order was made to file a notice of appeal. That 28-day period expired on 22 April 2025.

14 The applicant commenced this appeal by way of an application for extension of time and affidavit lodged on 24 April 2025, two days after the 28-day period expired. The rule providing for an extension of time to file a notice of appeal is r 36.05.

15 The affidavit accompanying the application for an extension of time is sworn by the applicant’s then solicitor Ms Marta Mamarot. It sets out the explanation for the delay. That explanation is addressed below. Ms Mamarot’s affidavit annexes a draft notice of appeal. It seeks orders that the decision of the primary judge be quashed, and an order for certiorari to quash the Minister’s Decision. As explained, it seeks leave to argue a ground that was not before the primary judge. That ground is expressed as follows:

1. The respondent failed to give proper, genuine and realistic consideration to the matter.

a. At Attachment 1 of the decision, the respondent signs to the statement that he spent 1 hour 40 minutes considering the materials in question before making the decision at 4:13 PM; 3 June 2024, in Canberra.

b. In order for this to be accurate, the respondent would have commenced the exercise of considering the materials in question at 2:33 PM.

c. Howev er, Han sard and other r eco rds show the r espondent was sea ted in the House of Representatives in Canberra at this time for Question Time. Hansard indicate s that Qu estio n Tim e commenced at 2:00 PM with th e r espo ndent present; 3 June 2024, in Canberra.

d. In the circumstances of the respondent the Court can be satisfied the respondent failed to give proper, genuine and realistic consideration to the matter.

16 As also explained, at the hearing on 11 March 2026 counsel for the applicant raised a ground of appeal not before the primary judge. The applicant described that ground as “a further ground or a further point related to” the ground above. We treat it as a further ground. The applicant alleged that there is an implied time limit on the exercise of the Minister’s power in s 501BA and that the Minister’s Decision was made outside that period.

17 In this appeal the Minister relies upon a written outline of submissions filed on 2 February 2026. The applicant does not rely upon any written submissions.

The merits of the proposed grounds

18 The merits of the substantial application are to be taken into account in considering whether an extension of time to appeal is granted. Leave will not be granted where there are no reasonable prospects of success on the appeal. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails, is hopeless, or is unarguable. In making that assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at 33 and the cases cited.

19 The merits of the proposed grounds are also an important consideration in deciding whether to grant leave to argue a ground of appeal not raised before the primary judge: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-48.

20 We first deal with the merits of each proposed ground separately. After assessing those merits, we determine whether leave would be granted to argue the grounds not before the primary judge. In light of those conclusions, we then determine the application for the extension of time to appeal.

Proposed ground one – did the Minister fail to properly consider?

21 The applicant relies upon the Minister’s “Decision Page”. As discussed at [11] above, it provides that the Minister made his decision under s 501BA of the Act at 4.13 pm on 3 June 2024 in Canberra, and records that the “total time taken in considering submission and attachments” was 1 hour and 40 minutes. The applicant alleges by the proposed ground that the Minister could not have given proper, genuine and realistic consideration to the matter because during part of the 1 hour and 40 minutes before 4.13 pm he was present and engaged in parliamentary question time.

22 The applicant’s oral submissions relied upon records from Hansard and ParlView (the live video coverage of parliamentary proceedings). Those records were not before the Court. The applicant submitted that those records show that the Minister was seated in the House of Representatives in Canberra at 2.00 pm for parliamentary question time, and that the Minister left question time at 3.08 pm, and that during that period several questions were directed to and answered by the Minister.

23 The applicant accepts that his argument assumes that the Minister considered his decision in a continuous period of 1 hour and 40 minutes before 4.13 pm on 3 June 2024. The applicant submits that the Court should assume that the Minister made his decision in a continuous period because: first, it is unlikely “in common experience” that an individual will sign off on a considered document at a time which is broken from the time that the document was completed or considered; second, the period of time, being 1 hour and 40 minutes, is not a lengthy period and it is therefore unlikely that a period of that length would be broken down into shorter increments; and third, the applicant’s research has not revealed any case where the evidence or the decision indicates that the “signing or completion of the decision was independent from its consideration”.

24 Even accepting the accuracy and admissibility of the material referenced by the applicant, we are not satisfied that the mere presence of the Minister in Parliament from 2.00 pm to 3.08 pm on 3 June 2024 undermines his ability to have dedicated 1 hour and 40 minutes to the decision. The Minister’s presence between those times does not evidence what he did before 2.00 pm or after 3.08 pm. We do not, in the present circumstances, consider it appropriate to assume that the Minister considered the matter in one continuous period. We do not accept the submission that it is unlikely in “common experience” that the “sign off” time might be broken from some other part of the consideration. There is also no basis to conclude that the period of 1 hour and 40 minutes is such a short period that it is unlikely that it would be broken into shorter periods. We are not persuaded, on the submissions before us, that the Minister’s consideration under s 501BA must be in one continuous period. Of course, the assessment of the adequacy of that consideration will depend on the circumstances of each case.

25 We do not consider that this proposed ground is reasonably arguable.

26 We note for completeness that there was a dispute between the parties about whether the information relied upon by the applicant offended parliamentary privilege. That privilege provides that a member of Parliament should be able to speak in Parliament “with impunity and without any fear of the consequences”: Sankey v Whitlam (1978) 142 CLR 1 at 35 (Gibbs ACJ). The Minister contends that while it is permissible for Hansard records to be used for the limited and non-contentious purpose of proving that a member of Parliament was present in the House on a particular day, such records cannot be used to justify inferences that are “contentious”: Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 228-231 (Beaumont J). The Minister says here the inference is contentious because the applicant submits that the Minister was being untruthful about the period spent by him considering the matter. The applicant describes his submission as alleging that the period is “wrongly stated”. It is not necessary for us to determine that dispute where we have found, even accepting the material, that the ground is not reasonably arguable.

Proposed ground two – was any implied time limit not met?

27 The applicant submits that the Minister’s power under s 501BA is subject to an “implied time limit”. He says the time taken here was outside that time limit. The time taken by the Minister was the period between the Tribunal’s decision on 21 December 2023 and his decision of 3 June 2024: a period of 165 days, or approximately five and a half months.

28 However, the applicant accepts that recent decisions of the Full Court of this Court in Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19 (Bromwich, Thawley and Kennett JJ) and Archer v Minister for Immigration & Citizenship [2026] FCAFC 20 (Bromwich, Thawley and Kennett JJ), are against his submission. He accepts that those decisions are relevantly indistinguishable. He concedes that those decisions mean the Court must “inevitably” find against the applicant on this ground.

29 In XMBQ, the Court determined that the power in s 501BA of the Act does not lapse if it is not exercised within a reasonable time: at 117 and at [31]-34. In that case, the Minister’s decision was made almost 38 months after the Tribunal’s decision. In Archer, the time between the Tribunal’s decision and the Minister’s decision was approximately 15 months. The Full Court in Archer (at [4]) reiterated that the question of whether the power in s 501BA is subject to an implied limitation that it be exercised within a reasonable period of time had been unanimously answered in the negative in XMBQ.

30 The Minister further contends, that even accepting an implied time limit, it is “inexplicable” how the five-and-a-half-month period in this case is so unreasonable that the power cannot be exercised. He says that is especially so where the Court has previously found that delays of between seven and 47 months have not breached any requirement (assuming one existed) to make a decision within a reasonable time: see XMBQ at 96 and the cases cited.

31 The applicant did not contend that XMBQ or Archer were plainly wrong and that we should depart from them. Absent such a submission, we consider there is no basis for us to do so. Further and in any event, if there was such a limitation we are not satisfied that the five and a half months in the circumstances of this case is unreasonable.

32 We do not consider that this proposed ground is reasonably arguable.

Would the Court grant leave to raise the new grounds?

33 The applicant accepts that his proposed grounds were not argued before the primary judge. He accepts leave to raise the new grounds is required.

34 In VUAX at [46]-[48], Kiefel, Weinberg and Stone JJ noted the following relevant factors in deciding whether to grant leave to argue a ground of appeal not raised before the primary judge: (1) it should only be granted if it is expedient in the interests of justice to do so; (2) the merit of the proposed ground; (3) whether there is prejudice to the respondent in permitting the ground to be agitated; and (4) whether there is an adequate explanation for the failure to take the point.

35 Those factors have been applied by recent Full Courts of this Court: see DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; 301 FCR 344 at [23]-24; Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134; 183 ALD 219 at 23.

36 Further, in Mailau v Minister f or Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12, Colvin and Halley JJ determined that the interests of justice include consideration of the serious personal consequences for the applicant that may result from an adverse decision: see at [105]-[107] citing with approval MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; 284 FCR 152 at [2] (Allsop CJ) and [90] (O’Callaghan and Colvin JJ).

37 Dealing first with the merits of the proposed grounds, for the reasons set out above we do not consider that the proposed grounds are reasonably arguable.

38 As to the explanation for the failure to raise the issue, the applicant relies upon his change of counsel. However, the applicant conceded at the hearing that this matter does not favour the applicant. We accept, as the Minister submits, that the applicant has not provided any adequate explanation for why he did not raise the proposed grounds before the primary judge. The applicant was given an opportunity by the primary judge to file and serve an amended application “containing complete particulars of the grounds of review on which he seeks to rely” before the hearing and availed himself of that opportunity. The applicant filed written submissions, prepared by experienced counsel.

39 Dealing then with prejudice. For the applicant, we accept that he first arrived in Australia in 2017 at the age of 21 and that an adverse decision will have serious personal consequences for him. For the respondent, we accept that the Minister will be prejudiced because the new grounds are premised on assertions which could have been met with further evidence before the primary judge. This type of prejudice was recognised in Coulton v Holcombe (1986) 162 CLR 1 at 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ), as cited in Po’oi v Minister for Immigration and Citizenship [2025] FCAFC 192 at 78.

40 We would not, in all of the circumstances, consider that it is expedient in the interests of justice to grant leave to argue the new grounds not raised before the primary judge. Whilst having regard to the interests of justice generally, we have taken account of the serious personal consequences for the applicant, but also, and significantly, the lack of merit of the grounds and the lack of an adequate explanation of the failure to raise the grounds before the primary judge.

41 Again for completeness, we note that there was a disagreement between the parties as to the consequences of evidence that might have been led about these grounds. The Minister said both new grounds are “fatally flawed” because they both required evidence to have been led in the proceedings below. The Minister relies on Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 (Latham CJ, Williams and Fullagar JJ) for the proposition that where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards. The applicant says that whether the Minister has been precluded from adducing evidence is not fatal to the application for leave, but is just one of several considerations relevant to the granting of leave, citing Po’oi at 82. In Po’oi the matter was described as one that “militates against the granting of leave”.

42 On proposed ground one, the Minister says that the question of whether the decision could have been made in separate broken periods rather than continuously, and the accuracy of the Minister’s statement that he took 1 hour and 40 minutes to make the decision, are matters the Minister would have addressed in evidence if such arguments were led in the proceedings below. On proposed ground two, the Minister relies on XMBQ at 96 for the proposition that ascertaining a “reasonable time” for making a decision under s 501BA is a “fact-intensive, evidence-heavy, evaluative exercise” which involves consideration of all relevant circumstances, including the factors that bear upon the Minister’s assessment of the national interest, such that evidence would have been led below.

43 For present purposes the difference is not material. It suffices to conclude, even treating the issue as one of several considerations rather than as the fatal consideration, we do not consider that the proposed grounds are reasonably arguable and for the reasons explained leave would be refused.

Should the Court grant an extension of time to appeal?

44 As explained, r 36.03 provides that an applicant must file a notice of appeal within 28 days after the date on which the judgment appealed from was pronounced or the order was made. Rule 36.05 provides a process by which a party can file an application for an extension of time to file a notice of appeal.

45 In DIS24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1397 at [28], Hespe J (citing Rere v Minister for Immigration and Border Protection [2018] FCA 846 at [16]-17 and DZAEH v Minister for Immigration and Border Protection [2016] FCA 83 at 25) identified the following considerations as relevant to the exercise of the Court’s discretion to extend time: (1) the length of the delay; (2) the nature of any explanation for the delay; (3) whether the other party will suffer any prejudice by the extension of time; (4) the prejudice to the applicant if time is not extended; and (5) whether the proposed grounds of review have sufficient merits to warrant extending time.

46 The delay is short, being a period of two days. The Minister does not identify any prejudice suffered by him as the result of any extension of time. The prejudice to the applicant is significant, he faces permanent removal from Australia and would be separated from his children in Australia.

47 As to the explanation for the delay, Ms Mamarot’s affidavit explains the reasons for the delay as follows:

(1) Legal Aid New South Wales approved funding for the applicant's legal representation on Friday 11 April 2025. Ms Mamarot deposes that, until that time, counsel could not be secured, as the matter was proceeding on a pro bono basis and the applicant did not have the financial means to engage private legal assistance;

(2) the applicant was detained at Villawood Immigration Detention Centre and remains without access to financial resources. Ms Mamarot deposes that these circumstances significantly impeded the applicant’s ability to obtain timely legal assistance and contribute to the preparation of the appeal;

(3) as a result of the public holidays over the Easter long weekend (Friday 18 April 2025 to Monday 21 April 2025), the application was executed on the next available business day, being Tuesday 22 April 2025; and

(4) an “initial” attempt to lodge the application was made on Tuesday 22 April 2025. However, due to an administrative error, the application was marked as “pending”. Ms Mamarot deposes that she was notified of this on Monday 28 April 2025 at 5.25 pm by the Court. This correspondence is annexed to her affidavit. That correspondence does not identify any attempt to lodge the application on 22 April 2025.

48 We accept, as the Minister submits, that while some effort has been made to explain the delay, the explanation is incomplete. The affidavit gives no indication of what actual steps were taken by the applicant and his representatives between the date Legal Aid funding was obtained on 11 April 2025 and the expiry of the time to lodge an appeal on 22 April 2025. The affidavit does not include any document to substantiate the assertion that an “initial attempt to lodge the application was made” on 22 April 2025.

49 As to whether the proposed grounds of review have sufficient merit to warrant extending time, for the reasons explained above we consider that the proposed grounds are not reasonably arguable. We would, for the reasons explained, refuse leave to argue those new grounds. There are no other grounds relied upon. In circumstances where such leave would be refused, there is clearly no sufficient merit in the application to warrant extending time.

50 Weighing all of those considerations, we refuse leave to extend time to appeal.

Disposition

51 It follows that the application for leave to extend time is to be dismissed. There is no reason why costs should not follow the event. We also consider it appropriate for the costs to be fixed as a lump sum. In the absence of agreement, the lump sum amount is to be determined by a Registrar of this Court.

| I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Moshinsky, Anderson and Dowling. |
Associate:

Dated: 27 March 2026

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