Gill v Minister for Immigration and Multicultural Affairs (No 2)

Case •

[2025] FedCFamC2G 187

•

26 February 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Gill v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 187

File number(s): MLG 4302 of 2019
Judgment of: JUDGE CORBETT
Date of judgment: 26 February 2025
Catchwords: MIGRATION – Student (Class TU) (Subclass 500) visa – application for review of Registrar’s decision – practice and procedure - reinstatement - application for an extension of time to seek review – Rule 21.02(2) - no reasonable prospects of successfully prosecuting substantive application – application dismissed.
Legislation:

Migration Act 1958 (Cth) ss 347(1)(b), 474(2), 477(2), 66(1), 494B, 494C(5)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 256, 254, 256(1)(a)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06 (1)(c), 21.02(1), 3.04(4), 21.02(2), 21.04, 21.04(2), 1.06(2)

Federal Court Rules 2011 (Cth) r 1.61(5)

Migration Regulations 1994 (Cth) reg 4.10, Sch 2 cl 500.213, regs 2.16(1), 2.16(3)

Cases cited:

Allison v Murphy [2021] FCAFC 232

BAH21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 753

Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228

CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344

Gill v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1419

Hunter Valley Development Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12

MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Patel v Minister for Immigration and Citizenship [2012] FCA 145

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28

Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172

Division: Division 2 General Federal Law
Number of paragraphs: 78
Date of last submission/s: 3 February 2025
Date of hearing: 3 February 2025
Place: Melbourne
Solicitor for the Applicant The applicant appeared self-represented
Solicitor for the Respondents Ms S Griffiths-Mark, Clayton Utz

ORDERS

MLG 4302 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JASPREET SINGH GILL

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE CORBETT

DATE OF ORDER:

26 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The application for review filed 2 January 2025 seeking to review the exercise of the Registrar’s power to dismiss the application for reinstatement be dismissed.

2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application for review fixed in the sum of $1,255.75.

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 CORBETT

  1. The applicant seeks to review the exercise of power of a Registrar of this Court on 17 December 2024. The Registrar ordered that the applicant’s application in a proceeding seeking reinstatement of the application for judicial review be dismissed with costs.

  2. The applicant sought judicial review of a decision of the second respondent (Tribunal) made 7 November 2019. The Tribunal held that it had no jurisdiction to review the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Class TU) (Subclass 500) visa (visa). The Tribunal lacked jurisdiction because the applicant failed to seek review of the delegate’s decision within the time fixed by s 347(1)(b) of the Migration Act 1958 (Cth) (Act) and reg 4.10 of the Migration Regulations 1994 (Cth) (Regulations).

  3. The application for judicial review of the Tribunal’s decision was filed in this Court on 9 December 2019 (substantive proceeding).

  4. On 6 November 2024, the substantive proceeding was listed for callover before a Registrar of this Court to be held on 20 November 2024.

  5. On 20 November 2024, the applicant failed to appear at the callover and the Registrar dismissed the substantive proceeding pursuant to r 13.06 (1)(c) of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).

  6. On 3 December 2024, the applicant filed an application seeking to reinstate the substantive proceeding. The application was supported by an affidavit affirmed by the applicant on 3 December 2024.

  7. On 17 December 2024, a Registrar of this Court dismissed the application to reinstate the substantive proceeding.

  8. On 2 January 2025, the applicant sought review of the Registrar’s Decision (Review Application). The Review Application was supported by two affidavits. The first affirmed on 24 December 2024 and the second affirmed on 2 January 2025, both filed with the Court on 2 January 2025.The first affidavit annexed the orders of the Registrar made 17 December 2024. The second affidavit asked that the Review Application be assigned to be heard by a Judge.

  9. For the reasons that follow, the Review Application is dismissed.

  10. References in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court on 3 February 2025, marked exhibit “R1”.

    BACKGROUND

  11. The applicant is an Indian national. The applicant arrived in Australia on a Tourist (Class TR) visa on 2 September 2018 (CB 9-10).

  12. On 2 December 2018, the applicant applied for the visa (CB 1-14).

  13. On 18 March 2019, a delegate of the Minister refused to grant the visa (CB 32-7). The delegate found that the applicant did not satisfy the English language requirements as required by cl 500.213 of Sch 2 of the Regulations. In particular, the applicant did not provide the delegate with proof of proficiency in the English language (CB 37). The letter informing the applicant of the delegate’s refusal decision was sent to the applicant by email to his nominated email address on 18 March 2019 (Review Letter) (CB 43-4).

  14. On 9 April 2019, the applicant applied to the Tribunal for review of the delegate’s decision (CB 38-9).

  15. On 12 April 2019, the Tribunal invited the applicant to comment on the validity of his application in writing by 26 April 2019, as the application was lodged one day outside the prescribed time limit (CB 47).

  16. On 16 April 2019, the applicant emailed the Tribunal in response to the invitation. The applicant replied (verbatim) (CB 52):

    Dear [Member]

    I hope you doing well. I am very thankful to you for looking at my application and invite me to comment for the delay.

    My student visa application was refused by the Department of Home Affairs on 18 March 2019. Unfortunately the department email landed in my Junk mail folder and by the time I checked into my junk mail box, its already been two weeks since the decision been made. I only left with one week to apply for review application.

    I had limited funds available in my saving, which were not sufficient for making the AAT application. I am also attaching my bank statement which shows my available funds on 01 April 2019.

    I am an overseas student and have no work rights. I am fully dependent on my parents for my financial needs. I looked for financial help from my friends in Australia but I was unable to get any support. I tried everything possible to submit my application with in 21 days but unfortunately due to lack of finance I was not able to make my review application within the allowed time period. I was few hours over than the allowed time when I submit my application on 09 April 2019.

    I request the Honorable Member to accept my application with my sincere apology for delay and give me a fair chance to put my case in front of the Tribunal.

    Thanks.

    Yours Sincerely

    Jaspreet Singh

  17. Attached to that letter was a bank statement that showed an account balance of $775.00 on 31 March 2018 (CB 54).

  18. On 9 November 2019, the Tribunal notified the applicant that it did not have jurisdiction to review the decision of the delegate of the Minister (CB 58-60) (Decision).

    PROCEEDINGS IN THIS COURT

  19. On 9 December 2019, the applicant commenced the substantive proceeding seeking judicial review of the Decision in this Court. The applicant set out the following grounds of review (verbatim) (CB 71):

    1.I applied for my student visa application, which was refused by the department on 18 March 2019.

    2.I applied for the review with the Administrative Appeals Tribunal on 9 April 2019 which is one day over the allowed time limit to make review application. I have informed the Administrative Appeal Tribunal that the reason for delay is because I was waiting for my funds to arrive from overseas.

    4.I also found the department decision almost a week later, because the email from the department went to my junk folder.

    5.The Tribunal member also made an error in addressing me in his decision. The member called me “SHE” in his decision.

    6.I have a strong case and I should must be given a fair opportunity to be heard in the court.

    7.The member failed to consider that each case has its own facts and ought to be considered separately.

    8.The member erred in coming to the conclusion and no further opportunity was provided to submit any supporting evidences.

  20. The application for judicial review was supported by an affidavit of the applicant affirmed 5 December 2019, which stated (verbatim) (CB 75-6):

    1.I am the applicant. My student visa application was refused by the Department of Home Affairs.

    2.I applied for the review of the refusal of my application to the AAT and I was one day over the time limit allowed for making the review application.

    3.The email from the department of Home affairs went to my Junk folder and I noticed the email almost a week later.

    4.I was waiting for my funds to come from overseas which also caused delay.

    5.The AAT member pay no heed towards my personal circumstances and errored in coming to the conclusion and no fair opportunity was provided to submit any supporting evidences.

    6.The AAT failed to accord me procedural fairness/natural justice by not hearing my case.

    7.The AAT has also failed to consider my claim by declaring that Tribunal have no Jurisdiction in this matter.

    8.The decision of AAT is attached as an Annexure – ‘A’

  21. On 8 January 2020, the solicitors for the Minister filed a Response to Application in which it was submitted that the Decision was not affected by jurisdictional error and is therefore a privative clause decision within the meaning of s 474(2) of the Act. As a consequence, the Minister sought that the application for judicial review filed 9 December 2019 be dismissed with costs (CB 81-2).

  22. On 30 March 2020, Registrar Carlton made orders listing the substantive proceeding for hearing on a date to be fixed. Orders were made for the filing and service of a Court Book and the applicant was given the opportunity to file any amended application for judicial review and written submissions 28 days before the hearing before this Court (CB 83-4).

  23. On 6 November 2024, the Court notified the parties by email that the proceeding was listed for callover before Judicial Registrar Cummings on 20 November 2024 at 2.30pm (AEDT) by telephone. The applicant did not appear. The Registrar dismissed the proceeding for non-appearance pursuant to r 13.06(1)(c) of the Rules.

  24. On 3 December 2024, the applicant filed an application in a proceeding seeking to set aside the orders of Registrar Cummings made 20 November 2024 dismissing the proceeding. The application contained the following grounds of review (verbatim):

    1.That the order by the Registrar Cummings on 20 November 2024 to dismiss my judicial review application in my absence is to be set aside.

    2.That the order is to be made to reinstate the hearing of the matter.

    3.That the order is to be made to accord me procedural fairness and natural justice in my case.

    4.In support of the application, I am also filing an affidavit dated 3/12/2024

  25. The application was supported by an affidavit of the applicant affirmed 3 December 2024 which said as follows (verbatim):

    1.I am the Applicant in this application.

    2.I applied for a student visa which was refused by the Delegate of minister on 18 March 2019.

    3.On 9 April 2019, I applied for a merit review with the Administrative Review Tribunal previously called Administrative Appeals Tribunal which affirmed the decision.

    4.I further applied for a judicial review on 23 January 2019 which was heard in Court by Registrar Cummings on 20 November 2024 in my absence.

    5.I missed the hearing details as I am having issues to login in email address – [email protected].

    6.The decision of the Court/Tribunal is affected by the incorrect principle of law.

  26. The affidavit annexed the cover page of the Tribunal Decision record, as well as the orders of Registrar Cummings made 20 November 2024.

  27. On 13 December 2024, the Minister filed an outline of submissions and an affidavit of service of Joseph John McDonald affirmed 13 December 2024 (exhibits R2 and R3). Those submissions contained submissions by the Minister that the applicant failed to adequately explain his failure to appear at the hearing before the Registrar on 20 November 2024, and that the application for judicial review has insufficient prospect of success to warrant reinstatement. The Minister sought orders that the application to reinstate be dismissed with costs.

  28. On 17 December 2024, Registrar Cummings made orders dismissing the applicant’s application for reinstatement of the proceeding. The Registrar also ordered that the applicant pay the respondents’ costs. The Registrar published written reasons dated 17 December 2024 (see Gill v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1419 (Gill)). The Registrar considered each of the grounds of review raised by the applicant and the statutory requirements to enliven the jurisdiction of the Tribunal. The Registrar was not satisfied that it would be in the interests of justice to reinstate the proceeding.

  29. The time within which to seek review of the exercise of power by a Registrar is within seven days of the exercise of power (r 21.02(1) of the Rules). In calculating time under the Rules, if the last day for taking an action that requires the attendance at a registry is a day when the registry is closed, the action may be taken on the next day when the registry is open (r 3.04(4) of the Rules). Rule 3.05 also gives the Court the power to extend or shorten any time fixed by the Rules, even if the time fixed has passed. Rule 21.02(2) of the Rules also gives the Court power to extend the time prescribed by r 21.02(1).

  30. The last day for filing the Review Application was 24 December 2024, which was a date on which the Registry was open.

  31. On 2 January 2025, the applicant lodged the Review Application with this Court. It was accepted for filing by the Registry on 3 January 2025. The Review Application was supported by two affidavits affirmed by the applicant on 24 December 2024 and 2 January 2025, both accepted for filing on 3 January 2025. The first affidavit set out some procedural history and concluded “The decision of the Court/Tribunal is affected by the incorrect principle of law”. The second affidavit recited that the deponent was the applicant in the proceeding, that he “filed an application for review on 25 December 2024” and “I want that a Judge to be assigned to hear my case”. No explanation was given for failing to file the Review Application before 24 December 2024 or that the applicant was not aware of his right to review the Registrar’s decision.

    REVIEW APPLICATION AND EXTENSION OF TIME

  32. The Review Application was heard before this Court at Melbourne on 3 February 2025 by video link. The applicant appeared self-represented and was assisted by an interpreter fluent in the Punjabi and English languages. Ms Griffiths-Mark, solicitor, appeared for the Minister.

  33. Section 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) permits a party to a proceeding to apply to the Court for review of the exercise of a delegated power. The power to delegate functions of the Court to the Registrars is to be found in s 254 of the FCFCOA Act.

  34. The power to review under s 256(1)(a) of the FCFCOA Act is conditional upon the party making the application “within the time prescribed by the Rules of Court”. The time prescribed by r 21.02(1) of the Rules is seven days from the date of exercise of the power.

  35. The Court has a broad discretion to grant an extension of time pursuant to r 21.02(2) of the Rules. The Court may have regard to the length of and explanation for the delay, whether the granting of an extension of time will prejudice the other parties to the proceeding, and the merits of the underlying application (see Hunter Valley Development Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-9). These considerations provide guidance and consistency in the approach to such applications, however, are not exhaustive considerations that the Court must contemplate (see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [41]-[43]). The discretion to extend time in appropriate circumstances is unfettered by the Rules, as is the discretion to extend time under s 477(2) of the Act (see Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at [12]).

  36. If an application is made within time or an extension of time is granted, a review of the exercise of power by a Registrar must proceed by way of a hearing de novo in accordance with r 21.04 of the Rules. This Court “is not concerned with the correctness of the decision of the Registrar or redressing any perceived error in that decision”, rather, it is required to consider the application for reinstatement afresh (see Allison v Murphy [2021] FCAFC 232 per Besanko, Colvin and Downes JJ at [11]).

  37. In the review, the Court may receive as evidence any affidavit or exhibit tendered before the Registrar, receive further evidence with leave, and any transcript of the proceeding before the Registrar (r 21.04(2) of the Rules). It is not necessary for the applicant to establish any error on the part of the Registrar.

  38. Nevertheless, before the Court may undertake a review, the jurisdiction of the Court to undertake a review must be properly invoked. In the present matter, the Review Application was out of time, therefore, it was a prerequisite that the applicant make an application for an extension of time to seek review. Whilst the applicant appeared to not understand the procedures of the Court and did not make a formal application for an extension of time under the Rules, the Minister did not object to the Court proceeding to hear the applicant’s submissions on the Review Application and could not identify any prejudice suffered by allowing the applicant to be heard.

  1. Further, given the time of the year at which the Review Application was filed and required to be made, some leniency is required, especially for litigants in person. It is noted that r 1.61(5) of the Federal Court Rules 2011 (Cth) (Federal Court Rules) provides that if a time fixed by the Rules or an order includes a day in the period starting on 24 December in a year and ending on 14 January in the next year, the day is not to be counted. Rule 1.06(2) of the Rules also allows this Court, where appropriate, to apply the Federal Court Rules. Therefore, the Court was prepared to entertain submissions from the applicant on the Review Application without requiring the applicant to apply for an extension of time so as to allow him to be heard and in particular, on the merits of the substantive proceeding.

  2. As the applicant was unrepresented, the Court gave the applicant the opportunity to orally explain the merits of the claim for judicial review in the proceeding. The Court confirmed with the applicant that he had received a copy of the Court Book prepared on behalf of the Minister, the affidavit of Mr McDonald and the Minister’s outline of written submissions dated 13 December 2024. The Court also explained that to have the proceeding reinstated, the applicant was required to explain the reason for his failure to appear at the callover in November 2024, as well as explain why the Tribunal erred in deciding that it did not have jurisdiction to review the Minister decision to refuse to grant him the visa.

    APPLICANT’S SUBMISSIONS

  3. In response to the Court’s invitation to explain why the proceeding should be reinstated, the applicant said, “I want to study and that is why I brought this matter here”.

  4. The Court inquired as to why the applicant failed to appear at the callover before Registrar Cummings on 20 November 2024. In response, the applicant said, “I did not see the email and that is why I could not appear. I applied to reinstate the application”.

  5. Turning to the substantive proceeding, the Court noted that the applicant was required to submit evidence to the Department of Home Affairs that his English language proficiency met the requirements under cl 500.213 of the Regulations and had failed to do so. This resulted in the delegate of the Minister refusing to grant the applicant the visa on 18 March 2019. The Court inquired why the applicant did not submit the required evidence to the Department, to which the applicant replied, “because I was trying to get the scores and I was trying to get the studies”. When asked why the applicant says he is qualified for the visa, the applicant said, “I wanted to study in Australia”. The Court informed the applicant that to be eligible for the visa, the applicant was required to satisfy the primary criteria, including that of the English language proficiency requirements. In reply, the applicant said, “I will provide you all the proof, could you please give me more time?”.

  6. The Court asked the applicant why he was unable to submit evidence of his English language proficiency in 2018 or 2019, whilst his application for the visa was under consideration by the Minister. In response, the applicant said, “if I do the test now, will I qualify?”. The Court reiterated that its function was limited to identifying jurisdictional error in the Decision of the Tribunal, if any. The Court did not have the power to grant the applicant a visa or determine his eligibility for the visa if he were to make a new application.

  7. The Court asked the applicant to explain why the Tribunal was wrong in deciding that the application for review of the delegate’s decision was out of time.

  8. The applicant said, “I don’t know what to answer, I am very confused…I will speak to my lawyer”. The applicant was otherwise unable to assist the Court as to merits of the proceeding or in identifying jurisdictional error by the Tribunal.

    MINISTER’S SUBMISSIONS

  9. On behalf of the Minister, Ms Griffiths-Mark submitted that the applicant sought to review a power exercised by this Court, being the orders of Registrar Cummings made 17 December 2024. Pursuant to r 21.02(1) of the Rules, an applicant must make an application for review of the exercise of a power by a Registrar within seven days of the Registrar’s decision. The Review Application was not made in accordance with the Rules and no extension of time was sought. The applicant was present at the hearing before the Registrar and had notice of the decision not to reinstate.

  10. Ms Griffiths-Mark submitted that the applicant failed to properly explain his failure to appear at the callover and stated that the underlying application for judicial review has no prospects of success. The applicant claims he missed the callover because he had issues accessing his email address, which is the same email address listed in his review application to the Tribunal. The applicant interrupted and submitted, “again, I am saying that I would have come…if I received an email, but I did not receive any email”. The solicitor for the Minister submitted that the applicant’s explanation for the delay given to the Registrar was that, in essence, he had trouble accessing his emails and only became aware of it upon viewing the Visa Entitlement Verification Online system, an unrelated platform which does not enable applicants to update personal information relating to their proceedings.

  11. The Minister submitted that the applicant lodged the visa application in 2018 and provided his email address for the purpose of receiving electronic communications. He was notified by email on 18 March 2019 that his visa had been refused by a delegate of the Minister, and the reason for that refusal was that he did not satisfy a primary criteria relating to his English language requirements. The applicant was unable to make his review application to the Tribunal within the required time and claimed he had insufficient funds in his bank. The Tribunal then proceeded to make its decision, and the applicant was notified thereafter.

  12. Ms Griffiths-Mark went on to say that the Tribunal found that as the application to the Tribunal was out of time by one day, it did not have the jurisdiction to hear the matter. The statutory requirements were critical to enliven the jurisdiction to review, and there was no discretion vested in the Tribunal to extend the time for review, even by one day. The Tribunal was therefore correct to find that it did not have jurisdiction to determine the application.

  13. Ms Griffiths -Mark then addressed each of the grounds for review in the application for judicial review filed with this Court on 9 December 2019. It was submitted that grounds one to four of the application for judicial review were simply factual background to the applicant’s application.

  14. Grounds six and eight were allegations that the applicant was not afforded procedural fairness. It was submitted that the Tribunal did in fact afford procedural fairness to the applicant by inviting him to comment on its initial views that it did not have jurisdiction to hear the matter. It considered the applicant’s responses at paragraph [5] of the Decision and found that although he provided an explanation as to his decision to lodge the application one day late, the application was simply not made within the prescribed time.

  15. Ground seven was a suggestion that the Tribunal considered facts from some other case. Ms Griffiths-Mark submitted that, apart from the incorrect gender of the applicant being used in the Decision, the Tribunal determined the application on the facts of the applicant’s case and there was no evidence to suggest otherwise.

  16. Ms Griffiths-Mark tendered the Court Book, as well as the affidavit of Joseph John McDonald and outline of written submissions, both filed 13 December 2024 and marked exhibits “R2” and “R3” respectively.

    REPLY

  17. The Court invited the applicant to make any further submissions in response to the Minister’s submissions. The applicant told the Court, “I just want to say that I was late due to the holidays and also for the payment”.

  18. The Court asked the applicant if he had anything to submit in response to the Minister’s submission that the Tribunal had no jurisdiction to hear the application because it did not have discretion to extend the time for review by one day. In response, the applicant said, “it was also not my fault because there were some holidays and I could not get a signature from a justice of the peace”. To avoid confusion, the Court clarified with the applicant that it referred to the Decision of the Tribunal made 9 November 2019, and not that of the exercise of power by the Registrar made 17 December 2024.

  19. In reply, the applicant said, “I will try again to study again, will you give me one more chance?”. The Court emphasised that it did not have the power to grant the applicant the visa and could only assist the applicant by identifying material mistakes in the Decision. The applicant said, “I don’t know the law, I will speak to the lawyer”.

  20. The Court invited the applicant to make any further final submissions. The applicant said, “can I get some more time?” and asked if the Court could give him “one more chance” for him to “try again”. The Court again reiterated that it could not grant him the visa, nor could it determine whether the applicant was eligible for a visa should he wish to make a separate application. The applicant said, “I need some more time so I can do my English test”.

  21. The applicant again submitted that he would need to speak to a lawyer who could explain this to him and that he could not “do it” without consulting one. This concluded the applicant’s submissions.

    CONSIDERATION

  22. This is an application for review of a decision of a Registrar not to reinstate the substantive proceeding which was dismissed for failure to appear at a callover on 20 November 2024. A review of the exercise of a power by a Registrar is a hearing de novo if it is made within time (r 21.04 of the Rules).

  23. The power to reinstate proceeding following dismissal for non-appearance involves the exercise of a discretion. The exercise of that discretion to reinstate involves the consideration of three factors (see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] per Ryan J):

    (1)Whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out:

    (2)The existence and nature of any prejudice which might flow to the other party from the reinstatement; and

    (3)Whether the applicant has a reasonably arguable prospect of success on the substantive application or proceeding.

  24. In MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18], North J said:

    [18] The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.

  25. Similarly, the discretion to extend time under r 21.02(2) of the Rules requires the Court to consider the explanation of delay and the merits of the substantive proceeding (see paragraph [35] above). If the substantive application has no reasonable prospects of success, then the discretion to extend time should not be exercised as it would serve no purpose to do so.

  26. Here, the substantive proceeding has no reasonable or arguable prospects of success. Therefore, an extension of time to bring the Review Application will not be granted and the discretion to reinstate will not be exercised. The substantive proceeding has no reasonable or arguable prospects of success for the reasons that follow.

  27. In Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (Xie), the Full Court of the Federal Court of Australia considered the statutory prerequisites to the Tribunal’s jurisdiction to review decisions of the Minister under Part 5 of the Act. The jurisdiction is statutory and must be invoked within the prescribed time limit. If it is not, the Tribunal has no jurisdiction to review and an application for review filed beyond the statutory time limit is invalid and must be dismissed (see Xie at [3], [5] and [19] per Spender, Kiefel and Dowsett JJ).

  28. In Patel v Minister for Immigration and Citizenship [2012] FCA 145 at [7], Marshall J said:

    [7] Section 347 of the Act permits a review of a decision of a delegate to the Tribunal. Under s 338(2) of the Act a decision to refuse to grant a Skilled Visa is reviewable in and by the Tribunal. Section 347(1)(b) provides that an application for a review must be made within the prescribed period. Regulation 4.10 of the Migration Regulations 1994 (Cth) (“the regulations”) prescribes a period of 21 days to bring an application to review a decision referred to in s 338(2) of the Act where, as here, the applicant is not in immigration detention. The Regulations do not provide for an extension of the 21 day time limit, even in special or exceptional circumstances. This appears to be a deliberate choice of the framers of the regulations. An application for review of a delegate’s decision is taken to be given to the Tribunal when it is received at the Tribunal’s registry. The appellants’ application was not received at the Tribunal’s registry until 29 March 2011.

  29. Proper notification of the delegate’s decision was given to the applicant in the Review Letter at the address for service given, thereafter, the applicant had 21 days within which to apply to the Tribunal for review. The last day for filing that application was 8 April 2019. The application was filed one day late. The Tribunal did not have jurisdiction to entertain the application for review and had no discretion to extend time (see Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228 at [82] and BAH21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 753 at [91] per Judge Kendall).

  30. In the Decision, the Tribunal correctly held that it had no jurisdiction to entertain the application for review. It reached that conclusion after inviting the applicant to make submissions. There was no denial by the Tribunal of procedural fairness in seeking that assistance. The applicant made submissions apologising for his delay (CB 53-4). In the absence of a defect in the Review Letter, the Tribunal lacked jurisdiction to review the delegate’s decision and was bound to find that it had no statutory jurisdiction to review the delegate’s decision.

  31. Therefore, the applicant’s substantive proceeding was bound to fail. There would be no purpose in granting an extension of time to review the Registrar’s decision not to reinstate and no purpose in reinstating the substantive proceeding. As Justice Mortimer (as her Honour then was) observed in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] when considering the discretion to reinstate:

    [4]…the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.

  32. The Registrar considered whether the Review Letter complied with s 66(1) of the Act, regs 2.16(1) and 2.16(3) of the Regulations and the provisions in ss 494B and 494C(5) of the Act (see Gill at [22]–[28]), and found that the Review Letter was valid and effective notice of the delegate’s decision and was given on 18 March 2019. The Court adopts those findings, and they are clearly correct. The time within which to commence a valid application for review in the Tribunal ended on 8 April 2019.

  33. Each of the grounds of review identified by the applicant in the substantive proceeding do not identify a material jurisdictional error by the Tribunal in the Decision.

  34. Grounds one, two, three and four of the substantive proceeding are simple narrative and are not particulars of jurisdictional error. Ground five was a simple error or slip that was not material and was not jurisdictional. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 at [9], the High Court said that when considering an application for judicial review of an administrative decision, there are two questions: “has an error occurred; and, if so, was that error material”. Here, there was no jurisdictional error in referring to the applicant as “she” and even if it was, it was not “material” to the Tribunal’s decision which is one that it was duty bound to make.

  35. Ground six is an assertion that the applicant be given a fair opportunity to be heard by this Court, however, there was no denial of procedural fairness by the Tribunal or the Registrar and no refusal to hear the applicant on any relevant matter. The Court has now heard the applicant on two occasions as to the merit of his substantive proceeding and the applicant has been unable to further his own cause or identify error by the Tribunal.

  36. Grounds seven and eight are vague and unclear. There was no failure by the Tribunal to consider the applicant’s application for review or the circumstances of his case, and the applicant has not identified any further evidence that the Tribunal failed to consider or considered in error. There was no evidence submitted to the Tribunal or this Court that the applicant satisfied the English language requirements in cl 500.213 of the Regulations or was capable of doing so. In any event. the Tribunal had no jurisdiction to consider further evidence or facts unless that evidence was addressing the validity of the Review Letter.

  37. The Review Application is dismissed and the orders of the Registrar made 17 December 2024 are not set aside.

    COSTS

  38. At the conclusion of the Minister’s submissions, Ms Griffiths-Mark informed the Court that if the Review Application was dismissed, the Minister sought an order for legal costs and disbursements fixed in the daily hearing fee amount of $1,255.75, in accordance with item 9(b) of Sch 2, Pt 1 of the Rules. Whilst that item is an item in relation to a hearing in the general federal law jurisdiction of the Court and not a migration matter, the sum claimed is fair and reasonable given the further submissions, appearance and general preparation required for the hearing of the Review Application in this matter. The sum claimed is appropriate and it is within the discretion of the Court to order.

    ORDERS

  39. The application for review filed 2 January 2025 seeking to review the exercise of the Registrar’s power to dismiss the application for reinstatement be dismissed.

  40. The applicant pay the first respondent’s costs and disbursements of and incidental to the application for review fixed in the sum of $1,255.75.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

Associate:       

Dated:            26 February 2025

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