Dema v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 591
•30 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dema v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 591
File number(s): CAG 25 of 2021 Judgment of: JUDGE LEISHMAN Date of judgment: 30 April 2025 Catchwords: MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – Application for extension of time for filing application for judicial review of Tribunal’s decision – Extent and reason for delay in filing application – Whether substantive application has reasonable prospects of success – No reasonable prospects of success – Application for extension of time refused – Order for costs Legislation: Migration Act 1958 (Cth) ss 65, 362C, 368, 368A, 368D, 476, 477, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2
Migration Regulations 1994 (Cth) Sch 2, cl 500.212
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
SZSDA v Minister for Immigration & Citizenship (2012) 135 ALD 17
EDY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 402
Minister for Immigration and Citizenship v SZRKT (2013) 136 ALD 41
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of hearing: 15 April 2025 Place: Canberra Solicitor for the Applicant: Self-represented litigant, in-person Solicitor for the First Respondent: Mr O’Connell of HWL Ebsworth Solicitor for the Second Respondent: Submitting appearance ORDERS
CAG 25 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHHIMI DEMA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICUTURAL AFFAIRS
First Respondent
ADMINSTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LEISHMAN
DATE OF ORDER:
30 APRIL 2025
THE COURT ORDERS THAT:
1.The application pursuant to s 477(2) of the Migration Act 1958 (Cth) for an order that the time for filing the application filed on 25 June 2021 be extended, is dismissed.
2.The Applicant pay the First Respondent’s costs in the amount of $4,189.38.
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 LEISHMAN
INTRODUCTION
On 25 June 2021, the Applicant applied to this Court for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), as it then was, made on 19 May 2021.
By that decision the Tribunal affirmed the decision of a delegate of the Minister for Home Affairs (‘the Delegate’), as the Minister was then called, to refuse to grant the Applicant a Student (Temporary) (Class TU) (subclass 500) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).
PROCEDURAL BACKGROUND
The Applicant is a citizen of Bhutan. She arrived in Australia on 31 January 2012 on a Student (subclass 573) visa. The Applicant has had several subsequent visas, including a Visitor (subclass 600) visa, a Temporary Graduate (subclass 485) visa, a second Student (subclass 573) visa, and two Student (subclass 500) visas.
On 28 August 2019, the Applicant applied for the visa, which is the subject of this judicial review application, being a Student (Temporary) (Class TU) (subclass 500) visa (‘the visa’) to complete the final unit of a Master of Professional Accounting at Holmes Institute Pty Ltd and because the remaining unit did not meet the required study load for an international student, to undertake an Advanced Diploma of Business at the Canberra Training School Pty Ltd.
On 31 October 2019, the Delegate refused to grant the Applicant the visa on the basis that the Delegate was not satisfied the Applicant met the genuine temporary entrant criterion in cl 500.212 in Sch 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’).
On 19 November 2019, the Applicant filed an application for review of the decision of the Delegate in the Tribunal.
On 11 March 2021, the Tribunal invited the Applicant to attend a hearing.
The hearing in the Tribunal took place on 26 March 2021.
On 19 May 2021, the Tribunal affirmed the Delegate’s decision.
On 21 May 2021, the Tribunal notified the Applicant of its decision.
THE TRIBUNAL’S DECISION
The Tribunal’s Decision is at pages 98 to 109 of the Court Book (‘CB’).
The Tribunal identified at [9] of its decision that the issue on review was whether the Applicant met the requirements of cl 500.212 of Sch 2 of the Regulations, which required that the Applicant is a genuine temporary applicant for entry and stay in Australia as a student.
Clause 500.212 is as follows:
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.
The Tribunal correctly stated in [11] that in considering whether the Applicant satisfies the genuine temporary entrant criterion in cl 500.212, it is to have regard to Direction Number 69 under s 499 of the Act (‘Direction No. 69’).
Direction No. 69 applies to delegates of the Minister and members of the Tribunal who review decisions in relation to a Student visa or Student Guardian visa application. Thus, the Tribunal was required to consider a number of factors including the Applicant’s circumstances in their home country, circumstances in Australia, the value of the course to the Applicant’s future, the Applicant’s immigration history, and any other relevant matter.
These factors are not a checklist but rather a guide to decision-makers in considering the Applicant’s circumstances as a whole and reaching a finding as to whether the Applicant satisfies the genuine temporary entrant criterion.
The Tribunal listed at [5] and [6] of its decision (CB99), the documents it took into account in reaching its decision. This included the following evidence submitted by the Applicant prior to the hearing:
(a)The Department’s decision record dated 31 October 2019;
(b)Applicant’s written statement (undated);
(c)Bhutan land title letter dated 4 November 2019 and title certificate;
(d)Bhutan licence information: Think Bhutan Tours;
(e)Letter dated 12 November 2019 advising the Applicant will be employed by the company;
(f)Business plan in relation to an organic farming enterprise in Bhutan;
(g)Applicant’s certificates and transcripts for studies completed;
(h)Evidence of communications with family members in Bhutan;
(i)Evidence of return travel to Bhutan in 2014; and
(j)Certified statement from the Applicant’s parents declaring property is to be inherited by the Applicant.
The Tribunal also considered information submitted to the Department at the time of its decision including Application for a Student Visa form, genuine temporary entrant statement, additional applicant statement, identity documents and health insurance certificate.
The Applicant appeared in person at the Tribunal hearing to give evidence and make submissions in support of the application.
At [13] of its decision (CB101), the Tribunal accepted the Applicant had ongoing personal ties to her home country and had some economic ties in the form of property ownership. The Tribunal placed weight on this information in the Applicant’s favour, but based on other factors, was not satisfied it provided a strong incentive for her to return to Bhutan after completing her studies.
At [14], the Tribunal considered the Applicant’s circumstances in Australia, including that she is a single woman aged 35, with no dependents, no family members in Australia, and has been a student since 2012.
The Tribunal found that the Applicant has developed ties to Australia due to the amount of time she has lived, studied, and worked away from Bhutan, with only one return visit in more than 10 years.
As such, the Tribunal was concerned that the Applicant has incentives to remain in Australia and may have applied for a further Student visa to maintain ongoing residency.
The Applicant gave evidence at the hearing that she is planning to develop an organic farming business in her home country. A business plan was submitted as evidence in support of the claim. The Applicant also provided evidence that she will be working in the travel industry for a tour company on her return to Bhutan.
When asked by the Tribunal why she had enrolled in a course in human resources despite having studied a Master of Professional Accounting, an MBA, and an Advanced Diploma of Business, the Applicant claimed she needed to learn about human resources, as well as the financial aspects of business. According to her evidence, the Applicant said she had been planning to work in international development but had changed her mind because others would be more experienced, (CB101) at [15].
At [16] of its decision, the Tribunal concluded that it was not satisfied the Applicant had provided a satisfactory reason why she has decided against pursuing a professional career in the fields she has studied previously (Master of Professional Accounting, MBA, Advanced Diploma of Business).
The Tribunal took into account that the Applicant had a bachelors degree prior to studying in Australia and then completed post-graduate qualifications which required a significant commitment in time and cost. In addition, it considered that the Applicant had regressed in her studies from post graduate master’s degrees to diploma level courses, and found the Applicant had not provided a satisfactory reason for how her current course in human resources will enhance her skills in business, or a role in a travel company, or that it will enhance the remuneration she could expect to receive.
The Tribunal considered the Applicant’s immigration history at [17] of its decision. It had regard to the number of Student visas the Applicant had held, as well as a temporary graduate visa, and that she was seeking a fifth Student visa to complete a Diploma of Human Resources. The Tribunal considered that the Applicant is enrolled until 10 October 2021 which meant she will have been a student for more than 10 years by the completion of the Diploma, having arrived in Australia in 2012.
The Tribunal also took into account at [18] of its decision the Applicant’s movement records and confirmed at the hearing that the Applicant has returned to Bhutan only once, being from 31 May 2014 until her return on 13 July 2014.
Having considered the Applicant’s immigration history in full, particularly the amount of time that has been spent in Australia, the Tribunal was concerned the Student visa may be being used primarily for maintaining ongoing residence which it considered weighed against the Applicant in assessing the criteria that must be met in order to be granted a Student visa.
The Tribunal weighed the evidence individually and cumulatively and was not satisfied the Applicant intends genuinely to stay in Australia temporarily. It therefore found the Applicant did not meet the criteria in cl 500.212(a) and was not satisfied that the Applicant is a genuine applicant for entry and stay as a student, as required by cl 500.212: see CB102 at [19] and [20].
CURRENT PROCEEDINGS
On 25 June 2021, the Applicant applied to this Court pursuant to s 476 of the Act for judicial review of the decision of the Tribunal (‘the judicial review application’). The Applicant also filed an affidavit annexing the Tribunal’s decision.
As the judicial review application was filed outside the 35-day time period specified in s 477(1) of the Act, the Applicant also applied for an order that the time for making the Application be extended under s 477(2).
It is the application for an extension of time for filing the judicial review application that I am required to determine.
ISSUE
The issue to be determined is whether an extension of time for the filing of the judicial review application filed on 25 June 2021 should be granted.
MATERIAL RELIED UPON
The Applicant relied upon the following:
(a)The Court Book which was tendered and marked as Exhibit C-1;
(b)The application for judicial review filed on 25 June 2021;
(c)The affidavit filed on 25 June 2021; and
(d)The affidavit filed on 26 March 2025.
The First Respondent relied upon the following:
(a)The Court Book which was tendered and marked as Exhibit C-1;
(b)The response filed on 9 July 2021;
(c)The outline of submissions filed on 1 April 2025; and
(d)The affidavit of service filed on 14 April 2025.
Should an extension of time be granted for the filing of the Application?
The time limit for filing an application under s 476 of the Act in the Federal Circuit and Family Court of Australia (Division 2) is “within 35 days of the date of the migration decision”: see s 477 of the Act.
Under s 477(2) of the Act:
…
(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.
Section 477(3)(b) of the Act as it then was, provides that the time for filing in respect of a Part-5 reviewable decision commences from when the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1).
Section 368(2) of the Act provides:
…
How and when written decisions are taken to be made
(2) A decision on a review (other than an oral decision) is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
Note: For oral decisions, see section 368D.
As per s 368A, the Tribunal must notify the Applicant of a decision on a review within 14 days after the day on which the decision is taken to have been made.
Therefore, the judicial review application should have been filed by 23 June 2021 but was filed on 25 June 2021. It was therefore two days out of time.
The principles regarding applications for extensions of time have been considered in a number of cases: see BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (‘BTI15’) and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 (‘Katoa’).
In BTI15, as per Jagot and Halley JJ, it was stated at [40] that the Court is required to:
… evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice.
See also Katoa at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
The following matters are relevant when considering whether to grant an extension of time:
(a)The extent of the delay and the explanation for it;
(b)Any prejudice;
(c)The impact on the applicant if the time is not extended;
(d)The interests of the public at large; and
(e)The merits of the substantive application: see BTI15 at [25]–[26] per Logan J, and Katoa at [40] per Gordon, Edelman, and Steward JJ.
Consideration
Extent and reason for delay
The Applicant’s reason given for the delay in filing the judicial review application is that she was unaware of the Migration Act 1958 (Cth), the Regulations and the 35-day time limit: see the affidavit filed on 25 June 2021 at [8].
In her affidavit filed on 26 March 2025, the Applicant’s evidence in the annexed statement is that she misunderstood the timeline of appeal and consequently miscalculated the date to appeal. By the time she was assigned a lawyer it led to a delayed appeal application.
To the extent that the Applicant may have been unaware of the time limit attached to filing a judicial review application, an unrepresented litigant’s ignorance of the time limit is not, without more, a satisfactory explanation for delay: see SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8] to [9]; SZSDA v Minister for Immigration & Citizenship (2012) 135 ALD 17 at [38]; EDY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 402 at [59].
The First Respondent submitted that although the delay was only two days, the lack of adequate explanation for the delay is a consideration which weighs against the Court granting the extension of time, and little weight should be placed on the explanation.
I agree that the Applicant’s explanation for the delay is not supported by any corroborating evidence as to the reasons for her delay in filing the judicial review application.
Prejudice
It was submitted by the First Respondent that it would not face prejudice if an extension of time was granted, particularly given that the delay in filing was only two days. However, it was submitted that there is significant public interest in the finality of judicial decisions and that the mere absence of prejudice cannot of itself justify the exercise of the discretion sought by the Applicant.
Impact on Applicant if extension not granted
The impact on the Applicant if time is not extended is that the decision of the Tribunal stands, and she would no longer be eligible to remain in Australia to undertake further study.
The Applicant herself has to bear some responsibility for this outcome noting that her evidence is that she misunderstood and miscalculated the time she had to lodge her judicial review application.
Interests of public
There is a significant public interest in the timely and effective disposal of litigation, particularly in the area of migration law where delays in dealing with visa applications should be avoided if possible.
Merits of substantive application for judicial review
I must also consider the merits of the underlying judicial review application in deciding whether to grant an extension of time.
The Applicant’s grounds for judicial review are set out at page 3 of the application filed on 25 June 2021, and are as follows:
1. The Tribunal's decision is against the law.
Particulars: The applicant satisfied the requirements of Subclass 500 (Student) visa.
2. The Tribunal's decision is against the facts and circumstances of the case.
Particulars: The material before the Tribunal proves that the applicant intended genuinely to stay in Australia temporarily, have strong ties to return to her home counter after completion of the education and has no incentive to stay in Australia.
Ground One
Ground one is an allegation that the Tribunal’s decision was unlawful, and that the Applicant satisfied the requirements of the Student (Temporary) (Class TU) (subclass 500) visa.
This ground appears to be an argument that the Tribunal’s decision was wrong.
It was submitted on behalf of the First Respondent that without the Applicant having particularised the error she alleges, this ground is without merit.
The Applicant did not particularise any material fact that the Tribunal failed to take into account which was relevant to its consideration of the merits of the visa application. If she had been able to, and it was a relevant consideration, a jurisdictional error would be found: see Minister for Immigration and Citizenship v SZRKT (2013) 136 ALD 41 at [119]-[128].
The relevant question is whether in reaching its decision, the Tribunal properly considered the genuine temporary entrant criterion in cl 500.212 and in doing so, whether it had regard to Direction No. 69.
As already outlined at [15] to [28] above, the Tribunal carefully considered and outlined in detail in its decision, all of the Applicant’s circumstances both favourable and unfavourable, and considered the criterion in cl 500.212 having regard to Direction No. 69.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131], Crennan and Bell JJ stated:
… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Ultimately, having weighed the evidence individually and cumulatively, the Tribunal was not satisfied that the Applicant intended to stay in Australia temporarily, and was not satisfied that the Applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
This was a finding that was open to the Tribunal to make on the evidence before it and no jurisdictional error is found.
Ground Two
Ground two is an allegation that the evidence that was before the Tribunal demonstrates that the Applicant “intended genuinely to stay in Australia temporarily” and that the Tribunal’s decision is wrong because it is “against the facts and circumstances of the case”.
Disagreement with the Tribunal’s decision in and of itself does not establish error.
It was submitted on behalf of the First Respondent that this ground is not directed to any specific reasoning of the Tribunal which the Applicant alleges was wrong.
The solicitor for the First Respondent referred to the High Court’s judgment in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, where Kiefel CJ, Keane, Gordon and Steward JJ stated at [27]:
None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder that may give rise to jurisdictional error.
A submission was made by the Applicant that the Tribunal had taken a particular approach to her because she is an international student, and it had treated her case in a similar manner to other Student visa applicants. The Applicant appeared to be suggesting that her situation had not been considered based on her actual, individual circumstances and that she had been treated as part of a class of Student visa applicants.
It was submitted on behalf of the First Respondent that the Tribunal’s decision and reasons were bespoke to the Applicant’s particular circumstances and that this is evident by the Tribunal having made both positive and negative findings about the Applicant’s individual circumstances.
As set out at [14] of its decision, the Tribunal found that the Applicant has developed ties to Australia due to the amount of time she has lived, studied, and worked away from Bhutan with only one return visit in more than 10 years. As such, the Tribunal was concerned that the Applicant has incentives to remain in Australia.
The Applicant submitted that the Tribunal did not take into account or should have accepted that the Diploma course she was enrolled in was critical to her future.
It was submitted on behalf of the First Respondent that a similar submission was likely made to the Tribunal and that at [16] of its decision, the Tribunal clearly considered whether the Diploma in Human Resources would enhance the Applicant’s skills in business, was relevant to her career or plans in Bhutan, or would enhance the remuneration she could expect to receive.
The Applicant also submitted that the Tribunal’s decision showed that it incorrectly considered she was intending to obtain residency in Australia because she had downgraded her course of study to a Diploma. The Applicant submitted that she had no incentives to remain in Australia and she just wanted to study.
Having considered the Applicant’s immigration history in full, particularly the amount of time she had spent in Australia on Student visas, and that she had only left Australia once, the Tribunal found that the Applicant may have been using the Student visa process to maintain ongoing residence which it considered weighed against the Applicant in assessing the cl 500.212 criterion.
This was a finding that was open to the Tribunal to make on the evidence before it and no jurisdictional error is found.
CONCLUSION
In terms of the question of whether the substantive judicial review application has any merit, such that an extension of time should be granted, having considered all the factors above, I find that the Application for judicial review lacks reasonably arguable prospects of success.
Although the delay in filing the application was relatively short, I conclude that due to the poor prospects of success in the substantive application, it is not necessary in the interests of the administration of justice to grant an extension of time for the filing of the judicial review application filed on 25 June 2021.
The application for an extension of time is therefore refused and the application for judicial review filed on 25 June 2021 is dismissed.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs.
The legal representative for the First Respondent sought costs in accordance with the costs scale in Sch 2, Pt 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for an interlocutory hearing in the amount of $4,189.38. The Applicant did not make any submissions as to costs although was invited to do so.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Leishman. Dated: 30 April 2025
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