Background
FZA18, a citizen of Bangladesh, entered Australia in February 2015 on a temporary work visa and applied for a Protection (Class XA) visa in September 2015. A ministerial delegate refused the application, and the Administrative Appeals Tribunal affirmed that refusal. The Federal Circuit and Family Court of Australia (Division 2) subsequently dismissed FZA18’s application for judicial review on 17 December 2024.
FZA18 sought to appeal that judgment, contending that the Tribunal had failed to consider evidence supporting his claim that he was a high-profile photojournalist known to Bangladeshi authorities, faced a risk to his life, and could not relocate safely within Bangladesh. His appeal was due by 28 January 2025, after application of the Federal Court Rules governing the year-end exclusion period, but his documents were not lodged until 25 March 2025. He therefore applied for an extension of time.
FZA18 said that he had sent a notice of appeal by express post on 8 January 2025 and later learned that the Court had no record of receiving it. He did not provide supporting postal records and did not adequately explain why he waited until 3 March to inquire about the appeal or until 25 March to lodge it again.
The Court’s Holding
Justice Younan dismissed the extension application. Although the 55-day delay was not considered significant and the Minister acknowledged that granting an extension would cause no specific prejudice, the absence of prejudice did not itself justify extending time. FZA18’s evidence did not adequately explain the delay.
The proposed appeal was also without merit. On a beneficial reading, FZA18 alleged that the Tribunal had overlooked his statutory declarations, photographs, articles, earlier statement, and a purported police report. The Tribunal’s reasons showed that it had addressed that material, however, and the primary judge had found that the documents were considered. FZA18 identified no error in that finding.
The Court concluded that FZA18’s arguments expressed disagreement with the Tribunal’s factual findings rather than identifying jurisdictional error or appealable error by the primary judge. The lack of a viable appeal was independently sufficient to refuse more time. The Court ordered FZA18 to pay the Minister’s costs in a fixed sum of $4,500, finding that amount reasonable and proportionate.
Key Takeaways
- An applicant seeking extra time to appeal should support the explanation for delay with evidence and account for each material period of inactivity.
- The absence of specific prejudice to the respondent does not, by itself, warrant an extension of time.
- Disagreement with a tribunal’s assessment of evidence does not establish jurisdictional or appealable error, particularly where the reasons show that the evidence was considered.
Why It Matters
The decision illustrates that the merits of a proposed appeal can determine an extension-of-time application even when the delay is relatively modest and causes no identified prejudice. A proposed ground must identify an arguable error in the judgment under appeal, not merely revisit the tribunal’s factual conclusions.
It also underscores the practical importance of retaining proof of filing or delivery and acting promptly when court documents appear to have gone missing. Unsupported assertions about attempted filing may not provide an adequate explanation for delay.