Gomes Pereira v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 890
•11 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gomes Pereira v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 890
File number(s): SYG 1832 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 11 June 2025 Catchwords: MIGRATION – extension of time – student visa – three days out of time – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) s 477 Cases cited: AMF15 v Minister for Immigration & Border Protection (2016) 241 FCR 30
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344
Jess v Scott (1986) 12 FCR 187
Makarov v Minister for Home Affairs (No. 3) [2020] FCA 1655
MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; [2016] FCAFC 110
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158; [2015] FCA 1392
SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89; [2015] HCA 42
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 22 May 2025 Place: Sydney Applicant: In Person Solicitor for the Respondents: Mr E. Inches of Australian Government Solicitor ORDERS
SYG 1832 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RICARDO GOMES PEREIRA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
11 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
3.The application filed on 3 August 2020 be 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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application filed under s 477(2) of the Migration Act 1958 (Cth) (Act), seeking an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 June 2020.
By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) visa.
The originating application was filed on 3 March 2021 (originating application), three days after the expiry of the 35-day filing period.
Having not been satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is dismissed for the following reasons.
BACKGROUND AND RELEVANT FACTS
The background of the matter was outlined in the Minster’s written submissions filed on 13 May 2025, which I largely adopt.
The applicant is a male national of Brazil who first arrived in Australia on 3 September 2010 as the holder of a Student visa.[1]
[1] Court Book (CB) 51.
On 11 October 2017, the applicant applied to the Tribunal for a review of the delegate’s decision. On 13 July 2019, the Tribunal affirmed the delegate’s decision (first Tribunal decision). On 16 August 2019, the applicant applied for judicial review of the first Tribunal decision in the Federal Circuit Court. On 3 December 2019, that Court made orders by consent that the application be remitted to the Tribunal for reconsideration.
On 6 May 2020, the Tribunal invited the applicant to provide information.[2] The applicant provided a response, including a submission and his Confirmation of Enrolment (CoE) for Graduate Diploma of Management (Learning) course that was due to commence on 1 June 2020 and end on 30 May 2021.[3]
[2] CB 56 to 63.
[3] CB 64 to 79.
On 29 May 2020, the Tribunal invited the applicant to attend a hearing on 12 June 2020 that would be conducted by telephone.[4]
[4] CB 80 to 83.
On 10 June 2020, the applicant provided a response to the hearing invitation and a number of documents, including a confirmation of enrolment and an enrolment summary from Academies Australasia Institute Pty Ltd for a course the applicant had enrolled in that commenced on 7 August 2017 and ended on 30 August 2019.[5]
[5] CB 86 to 93.
On 12 June 2020, the applicant attended the hearing where communication was facilitated by the services of an interpreter in the Portuguese and English languages.[6]
[6] CB 94.
On 26 June 2020, the Tribunal affirmed the decision under review.[7]
[7] CB 100 to 113.
Tribunal decision
In assessing whether the applicant met the genuine temporary entrant criterion in clause 500.212(a) in Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth), the Tribunal:
(a)accepted the applicant’s reasons for studying abroad were rational and reasonable;
(b)accepted the relevance of the applicant’s experience and past study to his proposed study (Diploma of Management and Advanced Diploma of Leadership and Management);
(c)accepted the applicant had ties to Brazil; and
(d)noted the applicant’s advice that he would earn more in Brazil with his qualifications than what he was currently earning in Australia.
However, it considered the above findings in favour of granting the visa were outweighed by the following findings:
(e)the applicant’s lengthy period of stay in Australia, being nearly a decade, gave rise to a concern that a further student visa may be used for maintaining ongoing residence;
(f)that he had not completed a course in Australia since 2017;
(g)that his evidence regarding his future career plans was unconvincing;
(h)that he did not demonstrate a ‘realistic level of knowledge’ about his proposed study.
Accordingly, the Tribunal found the genuine temporary entrant criterion for the grant of a Student visa had not been met and thereby affirmed the decision under review not to grant the applicant that visa.
RELEVANT LEGISLATION
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of the Tribunal’s decisions in respect of which this Court has jurisdiction and the basis upon which it may be extended. At the date of the Tribunal’s decision, it read as follows:
477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)
(1) An application to the Federal Circuit and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings by way of the originating application filed on 3 August 2020. That application was accompanied by an affidavit attached to which was a copy of the Tribunal’s decision.
As the Tribunal’s decision was dated 26 June 2020, the applicant had until 31 July 2020 to bring this proceeding. Because the application was not filed until 3 August 2020, it was brought three days out of time.
CONSIDERATION
The consequence of the application before this Court being filed late is that the Court must consider the two limbs of s 477(2) of the Act.
Application in writing specifying reasons
The first limb contained in s 477(2)(a) of the Act is whether the application has been made to the Court in writing detailing why the extension should be granted.
In his originating application, the applicant sought leave of the Court to grant him an extension of time. In his originating application, the applicant raised a sole ground (reproduced below without alteration):
AAT made a decision based on missing evidence, which I am now providing. After completing my “Advanced Diploma in Leadership and Management” diploma in 2017, I enrolled in the “Advanced Diploma of Marketing and Communication”. I worked on completing it, and did finish the course obtaining the diploma - please find evidence attached. I recently applied to undertake the “Graduate diploma of Management (Learning)”, but the application is suspended until I get clarity on my Australian Visa.
Section 477(2)(a) of the Act is thus satisfied.
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.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (Tu’uta Katoa) at [12], the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. 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 but the Court may look at a myriad of facts and circumstances including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application.
The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case at [40], Jagot and Halley JJ found that the Court has an obligation 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’. Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(a)the extent of the delay and explanation for it;
(b)any prejudice to the respondent if an extension were granted;
(c)the impact on the applicant if the time was not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application.
Whether an applicant has an arguable case on judicial review is the most important consideration because, as Mortimer J explained in CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344 at [4]:
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.
The extent of the delay and explanation for it
As stated above, the applicant’s delay in filing his judicial review application amounts to three days out of time.
Typically, the longer the delay the more persuasive the explanation for that delay needs to be. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse extension of time in the case of long delay: see Tran v Minister for Immigration and Border Protection [2014] FCA 533 per Wigney J at [38]; Jess v Scott (1986) 12 FCR 187 at [195].
At hearing, the applicant told the Court that he did not apply to the Court on time because he had ‘some issues submitting the files’ on that date. He further submitted he had difficulties finalising and posting the application as he has been unable to obtain legal representation.
The Minister submits that the extent of the delay is slight but maintains the applicant has not provided a satisfactory explanation for the delay. In relation to any delay attributed to the applicant’s difficulties in posting the application to the Court, the Minister submits the evidence before the Court does not substantiate this claim. The Minister submits the sealed notice of filing attached to the originating application evinces the application was made electronically which does not support the explanation provided insofar as it is contended that the delay arose out of having to make a postal application. I am persuaded by the Minister’s submissions.
In relation to the applicant’s lack of legal representation, the Minister submits, and I agree, that there is no right to legal representation in migration proceedings. Accordingly, a lack of representation cannot in and of itself be a reasonable explanation for filing out-of-time: see SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17 at [38] per Foster J.
Having considered the parties’ submissions and the available evidence, I am of the view that although the delay is relatively short, the applicant has not offered a satisfactory explanation for his delay in making this application. In the absence of a satisfactory and acceptable explanation, this albeit short delay weighs slightly against the grant of an extension.
Prejudice
The Minister concedes he would not suffer substantial prejudice if the extension were to be granted. However, the Minister submits that the mere absence of prejudice is insufficient to warrant the grant of an extension of time: see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. I consider this factor neutral regarding the grant of an extension.
Impact on the applicant
The applicant submits there it would be a stain on his record, work, and community. The Minister submits that even if the extension of time were to be granted, the claimed impact upon the applicant would be the same as the applicant would not succeed at final hearing.
If the extension of time is refused then the Tribunal’s decision will stand, with all the consequences that follow for the applicant in relation to his protection visa application. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, however an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth).
I accept that the impact on the applicant would be detrimental and there may be some benefit in averting that detriment even for some period of time until final hearing. I therefore consider this to be a matter weighing slightly in favour of the grant of an extension.
Interests of the public at large
The applicant submits that the public at large derives benefit from his work in the construction industry and membership of his community.
The Minister submits that there is a public interest in the finality of administrative decision making, particularly given the statutory timeframe in which to seek review, and that the present case does not offer any ‘exceptional’ circumstances and the proposed grounds lack merit which would justify an extension of time being granted: see Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89; HCA 42 at [3]; WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [30].
I am unpersuaded by the applicant’s submissions and agree with the Minister that any delay caused by the extension of time would undermine the public interest in the finality of decision making. In my view, this causes ‘some prejudice’ to the public at large: see Makarov v Minister for Home Affairs (No. 3) [2020] FCA 1655 at [128] per Katzmann J. I consider this factor weighs somewhat against the granting of the extension.
Merits of the substantive application
In considering whether a proposed appeal has merit, the Court will 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: see MZABP v Minister for Immigration & Border Protection [2015] FCA 1392 at [62]-[63], approved by the Full Court in MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; [2016] FCAFC 110.
Importantly, an applicant need only identify an ‘arguable case’ (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error that may warrant an extension being granted: see MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158; [2015] FCA 1392 (MZAIB).
The discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Tu’uta Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):
For example, if the delay is lengthy and unexplained, the applicant may be required to show that the case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.
Mindful of the Court’s obligations towards unrepresented litigants as outlined in MZAIB at [59]-[77], [100] and [112]-[113], I have scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error. I have also read the applicant’s grounds as broadly as possible and remain alive to the possibility of jurisdictional error on the Tribunal’s part. Nevertheless, I am of the view that error has not been disclosed on the Tribunal’s part and, for the following reasons, not persuaded that a reasonably arguable case of jurisdictional error arises out of the substantive application.
The applicant’s ground of review
As stated above, the applicant raises a sole ground of review in his application (reproduced below without alteration):
AAT made a decision based on missing evidence, which I am now providing. After completing my “Advanced Diploma in Leadership and Management” diploma in 2017, I enrolled in the “Advanced Diploma of Marketing and Communication”. I worked on completing it, and did finish the course obtaining the diploma - please find evidence attached. I recently applied to undertake the “Graduate diploma of Management (Learning)”, but the application is suspended until I get clarity on my Australian Visa.
At hearing, when given a chance to further elaborate on this ground the applicant stated he could not explain the ground of review any further. However, the applicant did express a desire for legal representation to help regularise his migration status. Insofar as the applicant can be understood to have made a request for an adjournment by way of that submission, the Minister submitted that it should be refused on the following reasons:
(a)As the current proceedings have been on foot for almost five years, the applicant has had ample time to make arrangements to appear at the hearing represented and to present evidence.
(b)There is no evidence before the Court that the applicant has taken any steps towards obtaining legal advice.
I rejected the applicant’s adjournment request on the basis that there was no evidence of him having taken any steps towards obtaining legal representation and nor is there any right to legal representation in migration proceedings: see AMF15 v Minister for Immigration & Border Protection (2016) 241 FCR 30 at [51] per Flick, Griffiths and Perry JJ. Further, as the Minister submits, the application has been on foot for a considerable period of time and the applicant has had ample time and opportunity to secure legal representation and assistance as well as file any amended application and affidavit evidence.
Turning now to the applicant’s sole ground, the applicant contends the Tribunal made its decision ‘based on missing evidence’. Annexed to the applicant’s affidavit filed with his originating application on 3 August 2020 is a copy of a certificate dated 16 June 2017 containing a certification that the applicant had fulfilled the requirements for an Advanced Diploma of Leadership and Management. When pressed further on this matter, the applicant raised an undetailed submission that he could not continue with his studies as he was ‘interrupted’.
The Minister submits the applicant’s sole ground is confused and without merit. Further, the Minister submits, and I accept, the Advanced Diploma of Leadership and Management certificate annexed to the applicant’s affidavit had already been provided to the delegate as part of the visa application, and to the Tribunal as part of the review application.[8]
[8] CB 31.
The Minister noted that the applicant’s complaint, at its highest, may be directed to the Tribunal’s reasons at paragraph [27]:
The applicant has not completed a course of study in Australia since completing his Advanced Diploma of Leadership and Management in June 2017. At the time of the First Tribunal Decision the applicant was enrolled to undertake an Advanced Diploma of Marketing and Communication. The applicant did not complete that course and is now enrolled to study a Graduate Diploma of Management (Learning).
(emphasis added)
I note the following evidentiary material in relation to the applicant’s study endeavours was before the Tribunal at the time of its decision:
(a)In relation to an Advanced Diploma of Leadership and Management, the Tribunal had before it a certificate of completion dated 16 June 2017[9] and a record of results dated 16 June 2017.[10]
(b)In relation to an Advanced Diploma of Marketing and Communication course, the Tribunal had before it a confirmation of enrolment specifying a course commencement date of 7 August 2017 and completion date of 30 August 2019.[11]
(c)In relation to a Graduate Diploma of Management (Learning) course, the Tribunal had before it a confirmation of enrolment specifying a course commencement date of 1 June 2020 and completion date of 30 May 2021.[12]
[9] CB 31.
[10] CB 32.
[11] CB 38.
[12] CB 79.
There was no documentary evidence before the Tribunal in relation to the applicant’s study in Australia which demonstrated that, following his completion of the Advanced Diploma of Leadership and Management in June 2017, he had done anything beyond enrol in the Advanced Diploma of Marketing and Communication course and the Graduate Diploma of Management (Learning). Therefore, I am of the view that on the material available to the Tribunal, its findings at paragraph [27] were open to it and do not disclose jurisdictional error. Accordingly, the ground must fail.
Given the foregoing analysis, I conclude the merits of the substantive judicial review application are lacking and this weighs heavily against granting an extension of time.
CONCLUSION
As the application in this case was filed with this Court three days outside the statutory timeframe, the Court may only grant an extension of time within which the application was to be made if it is satisfied such extension is in the interests of the administration of justice.
Taking into account all of the considerations above, particularly the lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal and the absence of a satisfactory explanation for the albeit short delay in filing the application, I am not satisfied it is in the interests of the administration of justice that time be extended in this matter.
Therefore, for the above reasons, the application before this Court is dismissed.
Finally, as a consequence of:
(a)the change in name of the Minister’s portfolio, the name of the first respondent is to be amended to ‘Minister for Immigration and Citizenship; and
(b)the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to ‘Administrative Review Tribunal’.
I will hear the parties as to costs.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 11 June 2025
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