Azam v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1243
•20 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Azam v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1243
File number(s): SYG 1402 of 2021 Judgment of: JUDGE MARQUARD Date of judgment: 20 August 2025 Catchwords: MIGRATION – application for extension of time - judicial review of a decision of the Administrative Appeals Tribunal – minimal delay – not in the interests of the administration of justice to extend – no reasonably arguable case – application dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: AHV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 6
AWS15 v Minister for Immigration [2016] FCCA 971
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59
Division: Division 2 General Federal Law Number of paragraphs: 135 Date of hearing: 20 June 2025 Place: Sydney Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr A Westenberg of Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1402 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMMED AZAM
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MARQUARD
DATE OF ORDER:
20 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Citizenship.
2.The application for extension of time dated 20 July 2021 is dismissed.
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 typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MARQUARD
OVERVIEW
Before this Court is an application filed on 20 July 2021 under s 477(2) of the Migration Act 1958 (Cth) (the Act). The applicant seeks an extension of time in which to lodge an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) made on 11 June 2021. The Tribunal affirmed a decision of the Department of Immigration and Border Protection (the Department), as delegate for the first respondent, to refuse to grant the applicant a Student (Class TU) (Subclass 500) visa.
The application for judicial review of the decision of the Tribunal was filed on 20 July 2021. This was four days after the expiry of the requisite 35-day filing period.
The first respondent opposes the application for extension of time.
A hearing was held in the Sydney Registry of the Court on 20 June 2025. The applicant appeared as a litigant in person. Mr Westenberg of Sparke Helmore appeared for the first respondent. An interpreter assisted the Court.
The application is dismissed for the following reasons.
BACKGROUND
The applicant is a citizen of India. He first arrived in Australia on 31 January 2018 as the holder of a Student (Class TU) (Subclass 500) visa (CB 30).
On 12 September 2019, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC). This was on the basis that the applicant had not complied with condition 8202(2)(b) in Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations), as he had enrolled in a diploma course which was a lower level than the bachelor’s degree he had completed in India. On 26 September 2019, the applicant responded to the NOICC and on 3 October 2019 the applicant was notified that a decision had been made not to cancel the visa (CB 91-92).
On 9 September 2019, the applicant lodged an application for a Student (Class TU) (Subclass 500) visa with the Department (CB 1-18). In the application he said that he had completed a bachelor’s degree in computer science in India. He said that in Australia he had completed a Diploma of Business Management and a Diploma of Management and Commerce (CB 9-10).
On 21 October 2019, the Department refused to grant the applicant the visa (CB 27-31). The Department was not satisfied that the applicant met cl 500.212 of Schedule 2 to the Regulations as the Department was not satisfied that the applicant intended genuinely to remain in Australia temporarily (CB 27-31).
The applicant applied to the Tribunal for review of the Department’s decision on 11 November 2019 (CB 32-33).
On 14 November 2019, the Tribunal acknowledged the application. The Tribunal also invited the applicant to provide material or written arguments for it to consider (CB 35-36).
On 19 February 2021, the Tribunal invited the applicant to provide further information regarding the applicant’s enrolment and whether he was a genuine applicant for entry and stay as a student (CB 37-44). The Tribunal attached a copy of Direction No 69 - Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Applications, noting that the Tribunal was required to have regard to it.
The applicant responded and completed a ‘Request for Student Visa Information Form’ and provided supporting documents (CB 45-63). He stated that he was currently enrolled in a Advanced Diploma of Business. He stated that he had been enrolled in this course since February 2021. The course end date was stated to be 22 May 2022 (CB 63). He said that he would also start the course ‘Master of Business Information System’ in July 2021.
The applicant also provided details of his academic history, why he chose the education provider, why he did not study in his home country, details of family, community ties and financial circumstances in India and Australia and information about his future plans (CB 45- 63).
On 18 May 2021, the Tribunal invited the applicant to appear at a hearing by way of telephone scheduled on 2 June 2021 (CB 64-67). He was also invited to provide documents on which he intended to rely seven days prior to the hearing, a current Certificate of Enrolment (CoE) and documents evidencing his past study in Australia (CB 66).
On 1 June 2021, the applicant responded to the hearing invitation and provided further documents in support (CB 68-93). He also provided a five-page ‘GTE Statement’ (CB 74-78).
On 2 June 2021, the applicant attended the hearing of the Tribunal held by way of Microsoft Teams (CB 94-96). The applicant was given until 4 June 2021 to respond to information which would have been the reason or part of the reason for affirming the decision under review, pursuant to s 359AA of the Migration Act 1958 Cth (the Act) (CB 98-99). The applicant responded on 4 June 2021(CB 101-105).
On 11 June 2021, the Tribunal affirmed the decision of the Department dated 21 October 2019 (CB 108-116).
TRIBUNAL DECISION 11 JUNE 2021 (CB 108-116)
The Tribunal noted that as approximately 19 months had passed since the Department decision, the Tribunal had provided the applicant with an opportunity to provide further and updated evidence. To this end, the Tribunal had written to the applicant pursuant to s 359(2) of the Act inviting the applicant to provide information about study and other matters ([5] of the Tribunal Decision).
The Tribunal stated that it was for the applicant to satisfy the requirements of the Act and make his case. The Tribunal noted that it proceeded to a decision based on all the evidence before it ([7-9] of the Tribunal Decision).
The Tribunal referred to the relevant legislative provisions and Direction No 69 (to be used as a guide not a checklist) ([10-14] of the Tribunal Decision).
The Tribunal recounted the applicant’s study history in India and Australia ([16-19] of the Tribunal Decision). The Tribunal recorded that the applicant had not completed his first course, a Master of Information Technology ([17] of the Tribunal Decision).
The Tribunal recorded that a search of the Provider Registration International Students Management System (PRISMS) database disclosed that the applicant had undertaken a Certificate III in Security Operations in 2018 ([17] of the Tribunal Decision).The Tribunal expressed concern that the applicant had not disclosed that he had undertaken a Certificate III in Security Operations in his response to the s 359(2) letter ([21] of the Tribunal Decision).
The Tribunal recorded its concern that the applicant stated in the questionnaire that he had not completed a Diploma of Business, ‘but a few days before the hearing produced a certificate of completion for this course’ ([21] of the Tribunal Decision).
The Tribunal reported that the PRISMS search did not reveal enrolment in a Diploma of Leadership and Management. The Tribunal recorded its concerns that documents provided by the applicant which appeared to be from a service provider stating that he had completed this Diploma, did not appear authentic. Further, the service provider was not listed in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) as a registered service provider ([24] of the Tribunal Decision). The Tribunal considered the applicant’s response to the s 359(2) letter. The Tribunal noted that it was unfortunate if course providers had put him in a situation where he had completed study that was not recorded on PRISMS, however the Tribunal nonetheless had concerns about the applicant’s credibility ([27] of the Tribunal Decision). The Tribunal noted that it put concerns to the applicant at hearing about his study history ([21] of the Tribunal Decision).
The Tribunal expressed concerns about the applicant’s study history, intentions for future study and the true nature of residing onshore ([20-22] and [24-26] of the Tribunal Decision).
The Tribunal recorded that the applicant had a tertiary qualification in Computer Science and Engineering. The Tribunal noted that the Advanced Diploma of Business was a downgrade from his tertiary qualification. The Tribunal had reservations as to whether the applicant genuinely intended to engage with a Masters of Business Information Systems, on the basis of his study history, even though the course could be relevant to the running of the family textile business in India ([28] of the Tribunal Decision).
The Tribunal recorded that there was information before it that the applicant had worked in Australia since 2018 as a store assistant. The Tribunal noted that the applicant had not listed any work history in his response to the s 359(2) letter ([29] of the Tribunal Decision). The Tribunal found that economic circumstances in Australia compared to India may be acting as a significant incentive for him to remain in Australia ([29] of the Tribunal Decision). It found that there were reasonable reasons for studying in Australia ([30] of the Tribunal Decision) and that he did not have significant ties in the Australian community ([31] of the Tribunal Decision).
The Tribunal found that the applicant had significant incentives to return to India ([32] of the Tribunal Decision) and there was no evidence of any travel, visa, immigration issues, or potential military service obligations, or evidence of political or civil unrest in India ([33] of the Tribunal Decision).
The Tribunal recorded concern that when considering the evidence as a whole, the applicant was motivated by factors other than study and was using the student visa as a means of maintaining residence in Australia ([34] of the Tribunal Decision). The Tribunal was not satisfied that the applicant genuinely intended to stay temporarily in Australia ([34] of the Tribunal Decision).
PROCEEDINGS IN THIS COURT
The applicant applied to this Court on 20 July 2021 for judicial review of the decision of the Tribunal not to grant him the Student (Class TU) (Subclass 500) visa.
The applicant sought orders that the decision of the Tribunal be quashed on the basis of jurisdictional error. The applicant specified three grounds of jurisdictional error.
In the application, the applicant selected ‘no’ when asked if he was seeking an extension of time in which to lodge his application for judicial review. However, the applicant had lodged his application for judicial review on 20 July 2021 which was four days after the last day stipulated for lodgement in accordance with s 477(1) of the Act. In his application, the applicant specified three reasons why he believed it was necessary in the interests of the administration of justice to extend the time for review.
The Court ordered that any amended application, affidavit evidence and submissions be filed by the applicant by 13 June 2025. No further documents were filed.
The applicant appeared at a hearing of this Court on 20 June 2025. Mr Westenberg from Sparke Helmore Lawyers appeared for the first respondent. A Hindi interpreter assisted the Court. The applicant confirmed that he could understand the interpreter.
The following documents were before the Court – the application, the affidavit of the applicant (which was read in court) attaching the Tribunal Decision and the NOICC, the Court Book tendered by the first respondent and marked as Exhibit RI, the respondent’s written submissions (First Respondent’s Written Submissions) and list of authorities filed 13 June 2025. The first respondent’s written submissions had been served on the applicant and a further copy was provided at Court and read to the applicant with assistance of the interpreter.
As the applicant was a litigant in person, the Court explained the processes of the Court to the applicant. The Court also outlined the general principles relating to extension of time applications and jurisdictional error.
CONSIDERATION OF THE EXTENSION OF TIME APPLICATION
Relevant law
Section 477 of the Act provides the time limit which applies to applications for judicial review of tribunal decisions in respect of which this Court has jurisdiction and the basis upon which it may be extended. At the time of the Tribunal Decision, the provision relevantly provided:
s 477 Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
…
The legislation does not prescribe what factors a court should consider, to determine whether extension of time is necessary in the interests of the administration of justice, pursuant to s 477(2) of the Act. The Court usually takes into consideration principles such as the length of the delay, whether there is an adequate explanation for the delay, any prejudice to the Minister and the merits of the proposed substantive application: see, for example: SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 (SZRIQ) at [46]-[48].
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 (Katoa) the majority of the High Court held at [12] that:
(a)the focus in considering whether to grant the extension of time is not on the interests of the applicant, but on the broader interests of the administration of justice; and
(b)the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
Lodgement of application for judicial review of the Tribunal Decision
As the Tribunal Decision was made on 11 June 2021, the time to apply for judicial review expired on 16 July 2021 (35 days from the Tribunal Decision: s 477(1) of the Act).
The application for review of the Tribunal Decision was not lodged by the applicant until 20 July 2021 which was four days after the prescribed time as set out in s 477(1) of the Act.
The applicant has applied for extension of time pursuant to s 477(2) of the Act. The Court must consider the two limbs of s 477(2) of the Act.
Application in writing specifying reasons
The first limb in s 477(2)(a) of the Act is whether an application has been made to the Court in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order extending time.
The applicant made an application in writing on 20 July 2021 seeking judicial review. The applicant did not request an extension of time, however under a heading ‘Grounds of application for extension of time’, the applicant wrote (as per original):
1. This is my first time lodging FCC appeal through eLodgement. I registered for eLodgement portal on 16 July 2021. On 19 July 2021, my registration became active. I did not realise it will take 3 days.
2. 19 July 2021 was the last date to submit my application to meet the 35 days limitation. I tried logging into my account but couldn’t log in. I had to do a password reset for which it cased me delay to lodge the application.
3. Please note, date and time of lodgment was 20/07/2021 at 1:13am. My application is only outside the 35 days limitation by 1hour and 13 minutes. My reasons for delaying the application by 1 hour and 13 minutes are outlined above. I request my application should be considered for extension of time. Evidence can be provided upon request.
The applicant is a litigant in person. Although the applicant has not formally requested an extension of time or clearly articulated why the extension of time is necessary in the interests of the administration of justice, he has set out the grounds for an extension, which can be taken to be the grounds he believes the extension is necessary in the interests of the administration of justice. For these reasons, the Court has taken the application for judicial review to be an application to the Court specifying why the applicant considers it necessary in the interests of the administration of justice to make an order extending time. The Court has dispensed with the need for an application in the approved form pursuant to r 1.07 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). The first respondent did not oppose the Court accepting the application for judicial review as an application for an extension of time pursuant to s 477(2)(a) of the Act.
The Court is satisfied that s 477(2)(a) of the Act is met, as an application has been made to the Court in writing specifying why the applicant considers it necessary in the interests of the administration of justice to make the order extending time.
Necessary in the interests of the administration of justice
The second limb of s 477(2)(b) allows the Court to grant an extension of time for the filing of an application if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time.
The High Court observed in Katoa at [11], that the text of equivalent provisions (relevant to the Federal Court), reveals a legislative intention to restrict exercise of the jurisdiction by placing a 35 day limit on applications and ameliorating injustice that might result by allowing that time to be extended only where a judge has reached a state of satisfaction that it is in the interest of administration of justice to extend (per Kiefel CJ, Gageler, Keane and Gleeson JJ at [11]). The Court also stated that the Court’s power to extend time is not focused on the interests of the applicant, but rather on the broader interests of the administration of justice (Katoa at [12]). The Court has considered whether it is necessary in the interests of administration of justice to extend the time for the application for judicial review, by reference to the extent of the delay and reason for it, consideration of prejudice to the first respondent and a consideration of the merits of the substantive application: SZRIQ at [46]-[48].
The extent of the delay and explanation for it
Section 477(1) of the Act requires that an application to this Court be made within 35 days of the date of the decision by the Tribunal. The Tribunal Decision was dated 11 June 2021 and therefore the application for review was required to be made by 16 July 2021. The applicant lodged the application for review on 20 July 2021, a period of 4 days after the prescribed time.
This is a very minor delay. The first respondent accepted in the written submissions and at hearing that the delay was minor (Tp 6.20-21).
The applicant claimed in his application that it was the first time he had lodged a document ‘through eLodgment’. He said that he ‘registered’ on 16 July 2021, and his registration became active on 19 July 2021. He said that he did not realise it would take three days to register. He said that 19 July 2021 was the last day to submit his application, and he tried to log in but could not do so. He said that he had to do a password reset which delayed the application. He thought that the application was due on 20 July such that his application was only 1 hour and 13 minutes late.
At the hearing, the applicant also said that his migration agent did not inform him of the 35-day time frame for lodging an appeal and he had no idea what to do (Tp 4.33-34 and 6.46-7.2). He said that his agent told him that he would submit the application when there was only one week left. He said that the agent was very busy with other clients so ‘did not bother’ to lodge his appeal and when the applicant tried to lodge the appeal, there was a ‘problem with the password’ and it took him three days to enter the information on the portal. He said that he lodged the application on the last day, but it was a ‘bit late’ and he was unfamiliar with the portal (Tp 5.1-25).
The first respondent submitted in the written submissions that the applicant had not filed an affidavit providing an explanation for the delay in accordance with r 29.05(2)(c) of the GFL Rules It was submitted that the application was liable to be dismissed on this basis: AWS15 v Minister for Immigration [2016] FCCA 971 at [18]. As the applicant was a litigant in person, the Court has provided him some leeway in respect of presentation of his evidence and does not accept that the application should be dismissed on this basis.
The first respondent also submitted that the applicant received the Tribunal Decision by email on 15 June 2021 (CB 106) and had 32 days within which to file his application. It was submitted that the applicant’s explanation for the delay was inadequate as he waited until the last day to register for eLodgment rather than actively prosecute his application (First Respondent’s Written Submissions).
At hearing, the first respondent reiterated these submissions. The first respondent also noted that the applicant’s explanation for the delay at the hearing was somewhat inconsistent with the explanation provided in his application in that he had not previously suggested that the delay was caused by any negligence on the part of his agent. The first respondent submitted that in any event, the applicant waited until the last day before filing the application and this was an inadequate explanation as it was for the applicant to actively prosecute his application (Tp 6.20-30).
Ignorance of the time limits is generally not a satisfactory explanation for a failure to comply with them: see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 per Foster J at [38]. No corroborative evidence has been provided to this Court to support the claim that the agent was negligent. Even so, while the Court has some sympathy for an applicant who is reliant on a negligent agent, there is nonetheless an obligation on an applicant to ensure that timelines are met. Even though the explanation provided by the applicant is not satisfactory, the Court has given some positive weight to the fact that the delay was so short.
However, even if the Court were to be satisfied that there was a satisfactory explanation for the delay in lodgement of the application, the application for an extension of time would be refused. This is because the Court has found there are no merits in the application, considered in more detail later in this judgment: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23]; Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J with whom Gyles and Besanko JJ agreed.
Any prejudice to the respondent if an extension were granted
In written submissions and confirmed at hearing, the first respondent submitted that there was no specific prejudice to the Minister beyond the Minister’s interest in the finality of administrative decision-making, citing Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491.
As specific prejudice to the first respondent has not been identified, the Court has considered this factor neutrally in respect of whether to grant the extension.
The merits of the substantive application
In considering whether a proposed appeal has merit, a court will usually do so at a ‘reasonably impressionistic level’ by way of assessing whether the proposed grounds are ‘arguable’, ‘reasonably arguable’ or ‘sufficiently arguable’ to warrant the grant of extension of time: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 (MZABP) at [62]-[63], and approved by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110.
In ascertaining whether there is an ‘arguable case’ or a ‘reasonably arguable’ case, the Court has considered the grounds identified by the applicant in the application and has also remained alert to the possibility of error that may warrant an extension being granted: MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 (MZAIB).
In his application, the applicant relies on the following four grounds of review (reproduced without alteration):
1.The Administrative Appeal Tribunal (AAT made a jurisdictional error by not giving proper weightage that the circumstances where beyond Applicant’s control in breaching the visa condition 8202(2)(a).
2.The Administrative Appeal Tribunal failed to consider the Applicant’s genuine intention to stay in Australia temporarily.
3.The Administrative Appeal Tribunal made jurisdictional error in not analysing the current job opportunities affected by the pandemic situation.
As the applicant is a litigant in person, the Court has considered the grounds broadly, in accordance with principles in MZAIB at [100].
After considering each of the grounds, the Court has not identified any jurisdictional error, for the reasons set out below.
Ground One
The first ground specified by the applicant was as follows:
The Administrative Appeal Tribunal (AAT made a jurisdictional error by not giving proper weightage that the circumstances where beyond Applicant’s control in breaching the visa condition 8202(2)(a).
The following particulars were provided by the applicant in the application:
Particulars
a) The Tribunal accepts that if the Applicant has been misled by the agent it is unfortunate. The Tribunal did not consider that the Applicant should not be penalised for the agent’s mistake.
b) Without giving a further chance to the Applicant, the Tribunal doubted the evidences produced by the Applicant.
c) Even though the Tribunal accepts that the enrolment in an Advanced Diploma of Business by the Applicant is with a registered course provider, but without giving weightage to the current course, the Tribunal affirmed the decision recorded by the Department of Home Affairs.
Cancellation issue
In this ground it appears that the applicant is contending that the Tribunal fell into jurisdictional error by unreasonably giving too much weight to the proposed cancellation by the Department and failing to take into consideration relevant evidence that there were circumstances beyond the applicant’s control.
The applicant is referring to a Notice of Intention to Consider Cancellation (NOICC) which was issued by the Department on 12 September 2019. Cancellation was being proposed on the basis that the applicant had not complied with condition 8202(2)(b) in Schedule 8 to the Regulations. The condition requires that a student must maintain enrolment in a registered course, that once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. The applicant had enrolled in a Diploma course which was a lower level than the registered course in relation to which the visa was granted. On 26 September 2019, the applicant responded to the NOICC and on 3 October 2019, the applicant was notified that a decision had been made not to cancel the visa (CB 91-92). The applicant stated in his response to the s 359(2) letter sent by the Tribunal, that he was not aware of the visa rules and did not understand that changing to a diploma degree could be harmful for his visa (CB 103).
At the hearing, the applicant contended that he came to Australia to do a master’s degree, but he did not know what to study when he arrived in Australia, so his agent changed his course to a ‘lower class’ certificate, but did not apply for a different visa for him (Tp 7.21-26). He said that was the reason the Department refused his visa, and the Tribunal found that he was not a genuine student. He said that his agent was negligent (Tp 7.32-35).
The first respondent submitted in written submissions, that the Tribunal did not ‘penalise’ the applicant for the ‘agent’s mistake’, as claimed by the applicant ([31] of the First Respondent’s Written Submissions). The first respondent submitted that the Tribunal Decision did not hinge on the issue of enrolling in a lower level course. The first respondent submitted that this was an issue related to the proposed cancellation of the visa by the Department, but not a reason the Tribunal found that the applicant did not meet the criterion for the visa.
The Court is satisfied that there is no jurisdictional error based on the Tribunal’s consideration of the possible cancellation of his visa. As contended by the first respondent, the Tribunal did not rely on the proposed cancellation to make findings that the applicant was not a genuine entrant pursuant to cl 500.212 of Schedule 2 to the Regulations. The Tribunal stated that the applicant was ‘forthright’ about the fact that he received a NOICC in relation to not maintaining enrolment in a course of the required level pursuant to his Higher Education sector visa ([18] of the Tribunal Decision) implying that the Tribunal believed him to be truthful and open about the cancellation. The Tribunal noted that the applicant had made submissions to the Department that he was not aware that he was not permitted to downgrade and noted that his visa was not cancelled ([18] of the Tribunal Decision). This is the only mention of the proposed cancellation in the Tribunal Decision. The Tribunal did not make any negative findings in relation to the proposed cancellation.
The first respondent is therefore correct to contend that the Tribunal did not ‘penalise’ the applicant for his agent’s mistake, or ‘not accept that the circumstances were beyond the applicant’s control’. The decision of the Tribunal did not hinge on the cancellation issue and the Tribunal did not unreasonably rely on it. The decision was made on other factors.
Doubting the applicant’s evidence, without giving him a further chance
The applicant also claimed in Ground 1 that the Tribunal ‘doubted’ his evidence without giving him a further chance (particular (b)).
The first respondent submitted that the applicant had not particularised the claim that the Tribunal ‘doubted without giving the applicant a further chance’, noting that the Tribunal had complied with procedural fairness obligations. The first respondent submitted that the applicant had been provided with three opportunities to provide more evidence and submissions ([32] and [33] of the First Respondent’s Written Submissions).
It appears that the applicant is suggesting that the Tribunal doubted its evidence in relation to the cancellation issue, as the particular ‘without giving a further chance to the Applicant, the Tribunal doubted the evidences produced by the Applicant’ is provided in relation to the cancellation ground. The Tribunal did not however doubt the applicant’s evidence about the cancellation issue, saying that the applicant was ‘forthright’ ([18] of the Tribunal Decision).
If the applicant is contending that the Tribunal doubted the applicant’s evidence generally, it is true that the Tribunal had concerns about aspects of the applicant’s evidence ([17], [19], [21-22], [24-29] of the Tribunal Decision). If the applicant is contending that this Court should take a different view of the evidence, that would be inviting the Court to engage in impermissible merits review by reaching a different conclusion: AHV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 6 per Markovic, Thomas and Banks-Smith JJ at [21]. It is for the Tribunal to assess the evidence and make findings of fact based on the evidence: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 (Tran) per RD Nicholson at [5]-[7].
Procedural fairness
If the applicant, in particular (b), is contending that procedural fairness was not afforded to the applicant, the Court is satisfied that the Tribunal complied with its obligations. Division 5 of Part 5 of the Act provides an exhaustive statement of the natural justice rule: s 357A; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [55]. The applicant was invited to a hearing pursuant to s 360 of the Act. Prior to the hearing the applicant was provided with various opportunities to provide evidence. On 14 November 2019, the Tribunal invited the applicant to provide material or written material for it to consider (CB 35). On 19 February 2021, the Tribunal invited the applicant to provide further information regarding the applicant’s enrolment and whether he was a genuine applicant for entry and stay as a student (CB 37-44). The Tribunal attached a copy of Direction No 69 ‘Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Applications’, noting that the Tribunal was required to have regard to it.
The applicant responded and completed a ‘Request for Student Visa Information Form’ and provided supporting documents (CB 45-63). The applicant also provided details of his academic history, why he chose the education provider, why he did not study in his home country, details of family, community ties and financial circumstances in India and Australia and information about his future plans.
On 18 May 2021, the Tribunal invited the applicant to appear at the hearing and also invited him to provide documents on which he intended to rely seven days prior to the hearing, a current CoE and documents evidencing his past study in Australia (CB 64-67). The applicant provided further documents in response (CB 68-93), including a five-page ‘GTE Statement’ (CB 74-78).
At the hearing, the Tribunal put concerns to the applicant about omitting to include details of the Certificate III in Security Operations in his response to the s 359(2) letter ([17] of the Tribunal Decision), the absence of a GTE statement in his application ([19] of the Tribunal Decision), documents relating to his Diploma of Business Course ([21] of the Tribunal Decision), absence of enrolment details in PRISMS ([24] and [27] of the Tribunal Decision), the downgrade of his course ([28] of the Tribunal Decision) and his work history ([29] of the Tribunal Decision).
On 2 June 2021, the applicant was sent a letter requesting further information pursuant to s 359AA of the Act (CB 97-99). The applicant responded on 4 June 2021(CB 101-105).
The Court is of the view that the Tribunal complied with natural justice obligations including providing ample opportunities for the applicant to respond to adverse information or to provide evidence to support his case.
Not giving sufficient weight to the applicant’s enrolment in a registered course
In particular (c) the applicant submitted that the Tribunal did not give sufficient weight to his enrolment in a registered course.
The Tribunal considered the applicant’s enrolment in an Advanced Diploma of Business on 3 March 2021 ([24] of the Tribunal Decision).
The weight to be given to this enrolment was a matter for the Tribunal: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 to 292 per Kirby J:
The weight to be given to the material before the decision-maker is, in a case submitted to judicial review, reserved to the decision-maker so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review
A Court cannot review the merits of a Tribunal decision, or reconsider the weight given by the Tribunal to the evidence produced by the applicant before and at the Tribunal hearings: Tran per RD Nicholson J at [5].
The Tribunal provided a detailed analysis of all of the evidence before it. In [26] of the decision, the Tribunal referred to the Tribunal Guidelines which dictated that evidence should be assessed in its entirety and not in isolated parts and that the Tribunal should evaluate what is objectively believable in the circumstances. The Tribunal noted its reservations about the applicant’s credibility in relation to the applicant’s study history, his intentions with future studies and the true nature of his intentions in residing onshore. It was open for the Tribunal to make these findings based on the evidence.
Conclusion – Ground One
There is no arguable or reasonably arguable ground (MZABP at [62] – [63]) of jurisdictional error disclosed in Ground One, and on this basis, it would not be in the interests of the administration of justice to extend the time for lodgement of an application for judicial review..
Ground two
The second ground specified by the applicant was:
The Administrative Appeal Tribunal failed to consider the Applicant’s genuine intention to stay in Australia temporarily.
The following particulars were provided by the applicant in the application:
a)The Tribunal accepts the Applicant’s reasonable reasons for undertaking studies in Australia. The Tribunal also satisfied with the Applicant’s close relationship with his immediate families and extended families living in India, but failed to reach into conclusion that the Applicant has genuine intention to stay in Australia temporarily.
b)The Tribunal satisfied with all the specified factors under Direction No 69, ‘Assessing the genuine temporary criterion for Student visa and Student Guardian visa applications’ made under the Section 499 of the Act, but did not give proper weightage for the findings and in contrary affirmed the decision recorded by the Department of Home Affairs.
The applicant submitted at hearing that he is the only family member in Australia, and he has only two or three friends in Australia (Tp 8.36-37).
In this ground, the applicant appears to be submitting that although the Tribunal accepted his reasons for studying in Australia and incentives to return to India, the Tribunal unreasonably reached a conclusion that the applicant did not intend to stay in Australia temporarily.
In respect of the applicant’s claim that the Tribunal fell into jurisdictional error by reaching conclusions unreasonably, the first respondent submitted that the Tribunal considered Direction No 69, gave weight to the applicant’s ties in India and his reasons for study in Australia ([36] of the First Respondent’s Written Submissions).
As referred to by the applicant in Ground 1, the Tribunal accepted as reasonable the applicant’s reasons for studying in Australia ([30] of the Tribunal Decision) and noted his lack of ties in Australia ([32] of the Tribunal Decision). The Tribunal accepted that the applicant had strong ties in India which served as an incentive to return to India ([32] of the Tribunal Decision). The Tribunal found that the applicant did not genuinely intend to stay temporarily taking into consideration these factors, but also his economic circumstances, migration history and study history ([28-35] of the Tribunal Decision).
The applicant appears to be contending that the Tribunal fell into jurisdictional error by unreasonably not giving sufficient weight to reasons for study and incentives to return to India.
It is established authority that the weight to be given to evidence is a matter for the Tribunal: Tran at [5]. The Court cannot engage in impermissible merits review by contemplating that different weight should have been given to any of these factors.
This Court has also considered whether the findings of the Tribunal were illogical or irrational, as this may be a generous interpretation of the ground claimed by the applicant. Engaging in a process of reasoning that is illogical or irrational is taken to refer to ‘extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal’: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZKRT) at [148].
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) per Crennan and Bell JJ at [133] it was stated that ‘the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it’. Their Honours further stated at [135] that:
While there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The criteria that the applicant was required to satisfy for the grant of a Student (Temporary) (Class TU) Student (Subclass 500) visa were set out in cl 500.211 to cl 500.218 of Schedule 2 of the Regulations. Clause 500.212 of Schedule 2 of the Regulations provided:
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about (a) the performance of those functions; or (b) the exercise of those powers. Section 499(2A) of the Act provides that a person or body (which would include the Tribunal) must comply with a direction given under s 499(1).
Direction 69 is a direction given by the Minister under s 499(1) of the Act concerning the assessment of the genuine temporary entrant criterion at cl 500.212(a).
The Tribunal referred to these legislative provisions and Direction 69 in the decision at ([10-14] of the Tribunal Decision).
As discussed earlier, prior to the hearing, the Tribunal had provided the applicant with an opportunity to provide further and updated evidence, noting that approximately 19 months had passed since the Department decision. ([5] of the Tribunal Decision). The applicant provided information for consideration by the Tribunal, and this was referred to in the Tribunal Decision (for example at [20] and [21]). At [7] of the Tribunal Decision, the Tribunal stated that it had proceeded to a decision having regard to all the information before it, including the material and evidence provided by the applicant on the day of the hearing. The applicant was provided with further opportunity to comment on adverse information after the hearing.
The Tribunal found that the applicant was motivated by factors other than study and was using the student visa system as a means of maintaining residence in Australia ([34] of the Tribunal Decision). The Tribunal had regard to the applicant’s failure to disclose information about his study history ([17] and [24] of the Tribunal Decision), his forthrightness about the proposed cancellation ([18] of the Tribunal Decision), immigration history, lack of information provided to the Department about his study history ([19] of the Tribunal Decision), enrolment in different courses to that stated in his application ([20] of the Tribunal Decision), filing of a Certificate of Completion for a Diploma of Business when he had stated that he had not completed this course ([21-22] of the Tribunal Decision), crossover of courses ([21] and [25] of the Tribunal Decision), absence of enrolments on PRISMS ([24-25] of the Tribunal Decision), documents which did not appear to be authentic ([24] of the Tribunal Decision), future plans in the family business ([28] of the Tribunal Decision), economic circumstances ([29] of the Tribunal Decision), reason for studying in Australia ([30] of the Tribunal Decision), ties with the community, family and community ties in India, and travel, visa and immigration issue ([31-33] of the Tribunal Decision). These matters broadly correspond with the factors in Direction 69, (which states that the factors outlined in the direction are a guideline only, and do not need to be used as a checklist).
The Tribunal then noted that in assessing credibility it should consider the evidence in its entirety ([26] of the Tribunal Decision) and found that the Tribunal could not be satisfied that the applicant was a genuine applicant for entry and stay as a student temporarily as required by cl 500.212 of Schedule 2 to the Regulations.
Given that the Tribunal referred to and applied the legislative provisions and had regard to Direction 69, then set out the evidence and its findings in detail, there is no extreme illogicality or irrationality displayed: SZKRT at [148]. The findings had an evident and intelligible justification: Li at per Hayne, Kiefel and Bell JJ at [76], as they were made after providing the applicant with extensive opportunity to provide evidence and then considering that evidence in detail in accordance with the legislation. A decision cannot be found to be unreasonable, irrational or illogical because one conclusion has been preferred over another: SZMDS per Crennan and Bell JJ at [131], [132] and [135].
The applicant also claimed that the Tribunal was satisfied with all the specified factors under Direction No 69. The Tribunal has not stated anywhere in the Tribunal Decision that it was ‘satisfied with all the specified factors’ or that it was satisfied that the applicant was a genuine entrant based on these factors. This part of the ground is factually wrong.
There is no arguable or reasonably arguable ground (MZABP at [62] – [63]) of jurisdictional error in Ground 2 and on this basis, it would not be in the interests of the administration of justice to extend the time for lodgement of an application for judicial review.
Ground three
The third ground specified by the applicant was:
The Administrative Appeal Tribunal made jurisdictional error in not analysing the current job opportunities affected by the pandemic situation.
The following particulars were provided by the applicant in the application:
a)The current pandemic situation has made Permanent Residents and Australian Citizens jobless. The Tribunal was keen to look into Applicant’s work history and spent time on digging, how the Applicant meet his expenses. The Tribunal failed to consider that all the International students are supported by their family in their home countries, especially in this pandemic situations.
b)The Tribunal reached into a decision purely based upon the statistical comparison on the different aspects of the nations between India and Australia, in the United Nations Human Development Index.
c)The Tribunal reached in to the decision based on a hypothetical situation that the Applicant is able to earn in excess of his expenses, in Australian dollars, onshore and concerned that the Applicant’s economic circumstances in Australia may be acting as a significant incentive for him to remain onshore. The Tribunal does not have any supporting evidences for this hypothetical arguments.
The applicant submitted at hearing that the applicant found it difficult to find a job in Australia due to the COVID-19 pandemic, which was not taken into consideration by the Tribunal (Tp 9.9-11).
It appears that in this ground, the applicant is submitting that the Tribunal fell into jurisdictional error by failing to take into account relevant evidence about COVID-19 or reaching findings in an irrational or illogical manner.
The applicant contended that the Tribunal should have considered the impact of the COVID- 19 pandemic on the ability of the applicant to find work in Australia. He submitted that it was difficult to find work and the Tribunal should have taken into consideration the fact that many international students were supported by their families, especially during the pandemic.
The first respondent submitted that the applicant did not adduce evidence about how COVID-19 was impacting on the ability of Australian citizens to find work, and therefore the Tribunal was not required to consider this ([38] of the First Respondent’s Written Submissions). The Tribunal agrees that this kind of general evidence about the impact of COVID -19 on job opportunities was not before the Tribunal. However, at [29] of the decision, the Tribunal recorded the applicant’s evidence that he ceased working as a store assistant because of the pandemic. The Tribunal found further that ‘although the applicant claims he is not working at the moment, the Tribunal is concerned about the amount the applicant is able to earn’. It is clear that the Tribunal took into consideration the applicant’s evidence that he said he was not working due to the pandemic, and then went on to look at future earnings.
The Tribunal also accepted that the applicant’s family were supporting him ([29] of the Tribunal Decision).
The Court is satisfied that no jurisdictional error arises by failing to take into consideration the impact of COVID-19, as the Tribunal did consider his evidence that he ceased working because of the pandemic. The Tribunal was not required to consider evidence about international students generally not being able to find work during the pandemic as this was not an issue raised by the applicant. It is for the applicant to present evidence to the Tribunal to make his case: VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 per Crennan J at [27]. However, even if this evidence was not presented by the applicant, it can be assumed that the Tribunal considered the impact of COVID-19 broadly as the applicant had mentioned that he lost his job owing to it.
The applicant has raised secondly that the Tribunal made an irrational or illogical finding that the applicant had economic incentives to remain in Australia, based ‘purely’ on a statistical analysis based on the United Nations Development Index.
The first respondent submitted that the Tribunal considered the applicant’s economic circumstances in India and Australia ([38] of the First Respondent’s Written Submissions). It was also submitted by the first respondent that the Tribunal did not give the UN Index rankings’ any great weight’ but instead focused on the applicant’s economic circumstances in Australia ([16] and [29] of the Tribunal Decision) ([39] of the First Respondent’s Written Submissions).
The Tribunal was required to consider whether the applicant was a genuine applicant for entry and stay because he intends genuinely to stay temporarily in Australia: cl 500.212 of Schedule 2 to the Regulations. As referred to earlier, the Tribunal must have regard to factors set out in cl 500.212 (a), (b) and (c). These include the applicant’s circumstances: cl 500.212 (a)(i) and any other relevant matter: cl 500.212(a)(iii). The Tribunal is required to take into account Ministerial Direction No 69 when considering cl 500.212: s 499 of the Act. Direction 69 states that it provides guidance to decision makers on what factors require consideration, and the factors set out in the Direction should not be used as a checklist. Paragraph 9 of Direction 69 states: ‘economic circumstances that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia’.
The Tribunal asked the applicant for evidence about economic incentives in Australia and India (s 359(2) letter 18 May 2021 (CB 65) attaching Ministerial Direction No 69 which includes paragraph 9), providing him with a fair opportunity to provide relevant evidence. As submitted by the first respondent, the applicant provided evidence to the Department and Tribunal about his previous employment and income (CB 10-11, 29, 47, 52 and115) which was before the Tribunal.
The Tribunal gave detailed consideration to the issue of economic incentives in Australia and India. The Tribunal referred to the applicant’s evidence that his family were supporting him at ([25] and [29] of the Tribunal Decision), and that he had expenses of AUD 13 800 ([29] of the Tribunal Decision).
At [29] of the Tribunal Decision, the Tribunal noted that the applicant had not listed any work history in the questionnaire filled out in response to the s 359(2) letter. The Tribunal also noted that in his application he said that he worked as a store assistant from May 2018. The Tribunal recorded that he was asked about his work history at hearing, and he said that he previously worked as a store assistant at Sydney International Airport but that stopped because of the COVID-19 pandemic in March or April 2020. The Tribunal recorded that the applicant said that he was earning about AUD 28 080 per annum.
The Tribunal then went on to record the applicant’s assets in India, which included AUD 10 000 in jewellery and watches, and an inheritance of AUD 80 000 which would pass to him upon his father’s death.
The Tribunal noted that it was concerned about the amount the applicant could earn in Australia in the future, in comparison with the amount he could earn in India. The Tribunal quoted the United Nations Development Index which provides a statistical comparison of per capita income indicators by country ([29] of the Tribunal Decision).
The Tribunal did not make findings based purely on the statistical data. The Tribunal considered the economic circumstances in accordance with cl 500.212(a) (i) and (iii) and Paragraph 9 of Direction 69. As set out above the Tribunal considered evidence including family support, work history, assets in India and earning capacity in Australia as compared to India. As submitted by the first respondent, it was a matter for the Tribunal to identify the country sources and weight to be attributed to these sources: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10.
The finding that the applicant’s economic circumstances in Australia may be acting as a significant incentive for him to remain onshore ([29] of the Tribunal Decision) was open to the Tribunal on the evidence.
There is no jurisdictional error on the basis of Ground 3 by way of failing to consider relevant evidence or reaching findings in an irrational or illogical manner. There is no arguable or reasonably arguable ground (MZABP at [62] – [63]) of jurisdictional error and therefore it is not in the interests of the administration of justice to extend the time for lodgement of the application for judicial review.
CONCLUSION
As the application for judicial review of the Tribunal Decision was made outside the statutory timeframe, the Court may only grant an extension of time if it is satisfied such extension is in the interests of the administration of justice: s 477(2) of the Act.
The Court has considered the various factors above, based on the decision in Katoa. Although there may be significant impact on the applicant if no extension is granted the Court has taken guidance from the High Court in Katoa at [12], that the Court’s power to extend time is not focused on the interests of the applicant but rather on the broader interests of the administration of justice. Even though the delay in lodgement was minimal, given that there are no arguable prospects of success, the Court is not satisfied that it is in the interests of the administration of justice that an extension of time for lodgement of the application for judicial review be granted.
The application for extension of time is dismissed.
On 28 May 2025 a Registrar of the Court made orders to change the name of the first respondent to the Minister for Immigration and Multicultural Affairs. On 13 May 2025 by Administrative Arrangements Order signed by the Governor-General of the Commonwealth of Australia, the Act is to be administered by the Department of Home Affairs. The newly named portfolio of Department of Immigration and Citizenship forms part of the Department of Home Affairs.
In these circumstances the Court will make an order substituting the Minister of Immigration and Citizenship as the first respondent in these proceedings.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard. Associate:
Dated: 20 August 2025
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