CHE19 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1692

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CHE19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1692

File number:

SYG 1424 of 2019

Judgment of:

JUDGE MCCABE

Date of judgment:

24 September 2025

Catchwords:

MIGRATION – Application for an extension of time – decision made by the Immigration Assessment Authority –protection visa – whether the Authority failed to apply the statutory tests correctly – whether the Authority denied the applicant procedural fairness – underlying application for judicial review lacks merit – extension of time refused.

Legislation:

Migration Act 1958 (Cth) ss 36(2)(aa), 473CB, 473DB, 473DC, 473DD, 477

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) sch 2

Cases cited:

Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505

Division:

Division 2 General Federal Law

Number of paragraphs:

22

Date of hearing:

24 September 2025

Place:

Sydney

Applicant:

The applicant appeared in person

Solicitor for the first respondent:

Mr L Dennis (Mills Oakley Lawyers)

Second respondent:

Submitting appearance, save as to costs

ORDERS

SYG 1424 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CHE19

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MCCABE
DATE OF ORDER:	24 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The application for an extension of time is refused pursuant to s 477(2) of the Migration Act 1958 (Cth).

2.The applicant pay the first respondent’s costs in the fixed amount of $4,553.02.

3.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE MCCABE:

1. I delivered oral reasons for my decision at the conclusion of the hearing on 24 September 2025. This written version of the reasons was prepared having regard to the recording of the hearing.

2. Mr CHE19, the applicant, wants the Court to review a decision of the Immigration Assessment Authority (the IAA) made on 8 April 2019. Section 477(1) of the Migration Act 1958 (Cth) says he had 35 days in which to file that application. He did not approach the Court until 11 June 2019. It follows his application for review was filed some 29 days outside the appeal period. He therefore requires an extension of time pursuant to s 477(2) of the Act before he can proceed. The minister (the first respondent in these proceedings) opposes the application for an extension of time.

3. I am not satisfied it is necessary in the interests of the administration of justice to give the extension of time. The extension of time must therefore be refused. I explain my reasons for that conclusion below. 

   BACKGROUND

4. Mr CHE19 is a citizen of Bangladesh. He came to Australia as an 'Irregular Maritime Arrival' in 2013. Shortly after his arrival, he was interviewed about his reasons for coming to this country. He claimed to be a supporter of the Bangladesh Nationalist Party (the BNP) while he lived in Bangladesh. He says he had been attacked and feared for his life on account of his political beliefs if he remained.

5. Mr CHE19 thereafter applied for a Safe Haven Enterprise (subclass 790) visa, or 'SHEV'. On 26 November 2018, a delegate of the minister interviewed Mr CHE19 about his claims for protection. The delegate was dissatisfied with aspects of the applicant's story. The delegate refused the application for a visa.

6. The application was thereafter referred to the IAA for review. The IAA was provided with the relevant contents of the departmental file. The applicant did not provide any further material despite being given an extended opportunity to do so.

7. The IAA's decision was delivered on 8 April 2019. A copy of the decision is reproduced in the court book at pp 129ff. On the evidence before it, the IAA concluded it was not persuaded by the applicant's claim that he was a BNP supporter, or that he was attacked on account of his beliefs, or that he was of interest to rival political gangs or the authorities. On the basis of what amounted to a credit finding, the IAA found there was not a real chance of harm: at [14]-[18] of its reasons. In those circumstances, the IAA was not satisfied the applicant had a well-founded fear of persecution, which meant he did not qualify as a refugee. The IAA relied on the same findings to determine the applicant did not face a real risk of significant harm - indeed, any harm - so the applicant was not eligible for complementary protection under s 36(2)(aa) of the Act. The discussion of the applicant's claim for complementary protection is found at [21]ff of the IAA’s reasons.

8. The IAA noted the Full Federal Court had decided in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 that the 'real risk' test for complementary protection is functionally the same in relevant respects as the 'real chance' test used in relation to refugee claims.

   THE RULES GOVERNING EXTENSION OF TIME APPLICATIONS

9. Section 477(2) of the Act permits the Court to extend time where it is satisfied that is required in the interests of the administration of justice. The legislation does not say what considerations are relevant to that question but a number of matters are typically addressed, including:

   ·the extent of the delay, and the explanation for that delay;

   ·any prejudice that would be experienced by the respondent or anyone else if the extension of time were granted; and

   ·the merits of the underlying application, the assessment of which requires some engagement with the criticisms of the decision under review.

10. In this case, the delay is not especially long - about a month - but that is still a real delay. Appeal periods are limited for good reason. In this case, the applicant has offered a confusing explanation for the delay. He provided me with documents that referred to an injury he experienced in a bike accident which left him in hospital. I do not doubt that occurred. However the evidence suggests the accident did not occur until October 2019, so it is irrelevant for present purposes. He also said he experienced an extended bout of pneumonia around the time of the appeal period, although he could not remember the dates - and in any event, he accepted he was able to continue working throughout this period notwithstanding his illness. He also filed an affidavit dated 11 June 2019 enclosing a medical certificate. The affidavit confirmed the applicant received a copy of the decision by email shortly after it was made. The medical certificate also referred to the applicant suffering from bronchitis for at least three months. Confusingly, the affidavit says the applicant forgot about the IAA’s decision until he was prompted to file an appeal when he sought advice.

11. To the extent the applicant says he was unwell around the time the reviewable decision was made and that he felt overwhelmed as a result, that explanation is unsatisfactory. He was able to work throughout the period so he should have been able to seek review in a timely way. This consideration weighs against the exercise of the discretion to extend time, although not heavily.

12. The minister does not contend he or anyone else will experience prejudice if the extension is granted. This consideration does not weigh for or against the exercise of the discretion.

13. The most important consideration - the decisive consideration in this case - is my assessment of the merits of the underlying application for review of the IAA's decision.

14. I start by referring to the grounds of review identified in the application. The first contends the IAA failed to correctly apply the test with respect to claims for complementary protection. In particulars, the applicant says the Tribunal (i.e., the IAA) "explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act." I asked the applicant what he meant by that contention but he was not able to elaborate because he did not write the grounds. He said a friend took care of that for him.

15. It will be apparent from the passages I already mentioned in the decision of the IAA that the applicant's contention must fail on a factual level. The IAA clearly appreciated it was applying separate tests because it discussed the tests under separate headings. It noted correctly there is significant overlap between the tests for present purposes. It is true the IAA did not make separate findings of fact in relation to the complementary protection test, but it did not need to do so given the overlap between the two tests: it was not unreasonable for the IAA to refer to the factual findings it had made earlier in relation to the applicant's refugee status to reach a conclusion about the claims for complementary protection.

16. The second ground contends the IAA failed to afford the applicant procedural fairness. There is no substance to this ground. The delegate's decision was properly referred to the IAA. IAA reviews under Part 7AA of the Act were generally intended to proceed without fresh information or an oral hearing: see ss 473CB and 473DB. There is no general obligation to seek further input from an applicant: s 473DC, although new information may be considered in exceptional circumstances outlined in s 473DD. In this case, the applicant asked to provide information and was given an extended opportunity to do so, but nothing new was forthcoming. Having complied with its limited procedural fairness obligations, the IAA proceeded to make its decision.

17. When we discussed the grounds at the hearing, the applicant said his central criticism was that the IAA failed to consider the evidence he presented about being attacked and the risks he faced. He referred to injuries he received when he was beaten and other matters which the IAA should have considered.

18. Taken at its highest, the applicant is contending the IAA's decision is unreasonable because it failed to take into account relevant evidence and submissions. But the IAA does appear to summarise the claims at [5] of its reasons. It then considers the evidence in relation to those claims with reference to country information reports at [10]ff. The IAA was not persuaded those claims were made out because it did not find the applicant's claims to be credible. That was a finding which was open to the IAA, and it is not apparent how that conclusion was unreasonable. In short, the applicant is simply expressing disagreement with the findings. While a different decision-maker might have reached a different view, that alone does not suggest jurisdictional error; it is an invitation to the Court to engage in impermissible merits review.

19. When I balance these considerations and consider what is necessary in the interests of the administration of justice, I am not satisfied I should exercise the discretion to extend time under s 477(2) of the Act. The absence of merit in the underlying application for review suggests it would be a waste of time and resources to allow this matter to proceed to a final hearing. The application for an extension of time must therefore be refused.

20. That leaves the question of costs. The minister has asked for an award of costs in the fixed amount of $4,553.02. Mr Dennis, who appeared for the minister, said it was reasonable to seek costs in circumstances in which the minister was required to defend the application. He added that the minister's actual costs exceeded the amount being sought. He justified the quantum by reference to the Court's scale in sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). He acknowledged the amount sought is the amount indicated under the current scale rather than the earlier scale which applied when the proceedings commenced. He said most of the work was done recently. I note there was also a false start in these proceedings when the application was dismissed by a registrar for non-appearance but the proceedings were reinstated.

21. I asked the applicant for comment about all this but he had nothing to say.

22. I accept costs should be ordered in favour of the minister in the fixed amount of $4,553.02. The minister has plainly been required to undertake work on the file, which included dealing with a dismissal and reinstatement application. In the circumstances, the amount sought is reasonable having regard to the amount of work described and the timing of that work.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge McCabe delivered on 24 September 2025.

Associate:

Dated:       16 October 2025