Millawithanachchi v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1310
•15 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Millawithanachchi v Minister for Immigration and Citizenship [2025] FedCFamC2G 1310
File number(s): MLG 2080 of 2020 Judgment of: JUDGE JOHNS Date of judgment: 15 August 2025 Catchwords: MIGRATION – application for extension of time – judicial review – Higher Education Sector (subclass 573) visa cancellation– one day late – inadequate explanation – no arguable case of jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 116, 368, 476, 476(2)(a), 477
Migration Regulations 1994 (Cth) sch 8 cl 8202.
Cases cited: EDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 826
EYY18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 947
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
SZTRYvMinister for Immigration & Border Protection [2015] FCAFC 86
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28]Division: Division 2 General Federal Law Number of paragraphs: 95 Date of hearing: 13 August 2025 Place: Melbourne Applicant: Banduja Maduranga Millawithanachchi appeared on his own behalf Solicitor for the First Respondent: Crishelle Lopez, HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2080 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BANDUJA MADURANGA MILLAWITHANACHCHI
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
15 AUGUST 2025
THE COURT ORDERS THAT:
1.The application filed on 17 June 2020 for an extension of time (to seek judicial review) is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE JOHNS
INTRODUCTION
Before this Court is an extension of time application filed by the Applicant on 17 June 2020 pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act). The Applicant seeks this extension of time so that he may subsequently apply to have a decision of the (then) Administrative Appeals Tribunal (Tribunal), made on 12 May 2020, judicially reviewed.[1]
[1] Court Book (CB) 74-81.
In that decision, the Tribunal affirmed the prior decision of the then Minister for Home Affair’s delegate (Delegate) to cancel the Applicant’s Higher Education Sector (subclass 573) visa (Student Visa).
Section 476 of the Act confers upon this Court, in relation to migration decisions, the “same original jurisdiction as the High Court under s 75(v) of the Constitution”. That is, the Court may undertake judicial review, in respect of matters “where a writ of mandamus or prohibition, or an injunction, is sought against an officer of the Commonwealth.”[2]
[2] EDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 826, [64].
The Applicant filed his application for judicial review on the 17 June 2020: 36 days after the Tribunal’s decision was made and one day outside of the time limit prescribed by s 477 of the Act.[3] As a result, Mr Banduja sought an extension of time in his application.[4]
[3] CB 71-81.
[4] Migration Act 1958 (cth) s 477(2).
Having not been satisfied that it is necessary in the interests of the administration of justice to grant the Applicant an extension of time, the application is dismissed for the reasons that follow.
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
Issue In Dispute
The primary issue is whether there are sufficient grounds for the Court to exercise their discretion in granting an extension of time pursuant to s 477(2) of the Act.
The Application for a Visa
The Applicant is a citizen of Sri Lanka who arrived in Australia on 3 August 2015 as the holder of a Higher Education Sector (subclass 573) visa, granted 16 June 2015. [5]
[5] CB 34.
Decision by the Delegate
On 4 July 2019, the Delegate sent the Applicant notice of the Minister’s intention to consider cancellation of the Student Visa in question (NOICC).[6] The NOICC was issued because the Department became aware that the Applicant had “not been enrolled in a registered course between 06 August 2018 and 23 June 2019”, as mandated by condition 8202 of his Student Visa.[7]
[6] CB 6.
[7] CB 6-7.
The Applicant was required to provide his response to the NOICC, “within five working days after [he was] taken to have received” the notice.[8] On 11 July 2019 (5 working days after the issuance of the NOICC), the Applicant sent a response, through an appointed migration agent (Mr Armit Narwal).[9]
[8] CB 8.
[9] CB 10-12.
Mr. Narwal provided the following explanation for the Applicant having breached condition 8202:
(1)he failed to obtain sufficient grades in the preparatory course he undertook to gain admittance into a Bachelor of IT at the Melbourne Institution of Business & Technology; this led to his commencement of the degree being deferred a semester;
(2)before the Applicant could recommence his studies, his father had an accident in Sri Lanka which resulted in the Applicant temporarily returning to his home country. This event deferred the commencement of his bachelor’s degree by an additional semester; and
(3)at some point after his fathers accident, the Applicant lost interest in undertaking the bachelor’s degree mentioned.
Mr. Narwal also informed the Minister that:
(1)after dropping out of his IT course, the Applicant commenced an Advanced Diploma of Business at Stott’s College (Business Diploma), with the intention of subsequently completing a Bachelor of Business;[10] and
(2)the Applicant had subsequently dropped out of this Business Diploma in order to pursue an Automotive packaged course (including Certificates III, IV and a Diploma) (Automotive Course) at Menzies Institute of Technology. This decision was ostensibly made so that the Applicant could be of assistance in his family’s automative shop on returning to Sri Lanka.[11]
[10] CB 12
[11] CB 12
Confirmation-of-Enrolment (COE) documents submitted by the Applicants migration agent tendered in their email response to the NOICC identified that the Applicant had ceased his Business Diploma on the 17 June 2018 and had not enrolled in his Automotive Course until 24 June 2019 (i.e after the NOICC was issued).[12]
[12] CB 22, 34.
On 6 August 2019, Mr. Narwal (then the authorised recipient of the Applicant),[13] was notified of the Delegate’s decision to cancel the Student Visa on the basis that the Applicant did not comply with condition 8202;[14] this power of cancellation is conferred on the Minister (and their Delegates by extension) by s 116 of the Act.
[13] CB 13-18.
[14] CB 25-38.
The Court notes that, in any case, the Applicant’s Student Visa was scheduled to expire on 30 August 2019 (i.e. 24 days after the cancellation date).[15]
[15] CB 31.
The factors the Delegate referenced in support of her decision to cancel the Applicant’s Visa were as follows:
(1)the Applicant was granted a Student Visa for the purpose of studying in Australia. In essence, “[t]he purpose for which the [Applicants] visa was granted” was determined to have ceased by “at least 6 August 2018, which [was] the date the visa holder’s enrolment in the… Bachelor of Business was cancelled for non-commencement of studies”.[16] The Applicant’s re-enrolment in the Automotive Course was given no weight by the Delegate, as the Applicant only obtained “enrolment after he was contacted by the Visa Cancellation Unit”; moreover, the Applicant’s Automotive Course commenced “only 39 days prior to his” Student Visa expiring. The Delegate accorded this consideration significant weight;[17]
(2)the extent of the Applicants failure to comply with the requirement that he be enrolled in a registered course was substantial (i.e. a period of approximately 10 months). In according this consideration “significant weight”, the Delegate was convinced that “the ground for cancellation under section 116(1)(b) still” existed, despite the Applicant’s being enrolled, at the time of the decision, in the abovementioned Automotive Course;[18]
(3)there existed “no extenuating circumstances beyond [the Applicants] control for his failure to remain enrolled in a registered course for the duration of his” Student Visa.[19] More specifically, the Delegate concluded that the explanations advanced by the Applicant did not “demonstrate that there were circumstances beyond his control which prevented him from complying with condition 8202(2)(a)” even if they “may have played a part in the [Applicants] non-compliance”.[20] The Delegate gave credence to the lack of evidence that the Applicant sought to defer his studies for the reasons advanced.[21] This consideration was accorded “a little” weight.
[16] CB 34; note, according to these dates, the gap in the Applicant’s enrolment spanned 10 months and 18 days. Had the Delegate instead measured from 17 June 2018, the enrolment gap would be 12 months and 7 days.
[17] CB 34.
[18] CB 35.
[19] CB 36
[20] CB 36
[21] CB 36
On balance, the Delegate was “satisfied that the grounds for cancelling the visa outweigh[ed] the reasons not to cancel the visa”. [22]
[22] CB 38.
By operation of s 476(2)(a) of the Act, this Court has no power to review the decision of the Delegate.
Application to the Tribunal
On 12 August 2019 the Applicant applied to the Tribunal for review of the Delegate’s decision.[23]
[23] CB 39.
On 15 August 2019 the Registrar sent acknowledgment of the application to the Applicant’s representative.[24]
[24] CB 40-4.
On 27 March 2020 the Registrar sent a hearing invitation to the Applicant’s representative; the hearing in question was scheduled for 11.00 am on 29 April 2020.[25]
[25] CB 46-50.
On 31 March 2020 the Registrar notified the Applicant’s representative that the hearing had been rescheduled to 11.30 am on 12 May 2020. An Information about hearings – MR division leaflet and a Response to hearing invitation – MR Division form were enclosed in this letter; the applicant was giving 7 days upon being notified of the letter to return the completed form.[26]
[26] CB 51-4.
On 9 May 2020,[27] the Applicant’s representative forwarded to the Registry:
(1)the Applicant’s submissions;[28]
(2)proof of the Applicant’s father’s automotive businesses in Sri Lanka, in the form of a Deed of Lease;[29]
(3)COE documents confirming the Applicant’s enrolment in the aforementioned Automotive Course; [30] and
(4)a copy of the Applicant’s passport.
[27] CB 55.
[28] CB 56-9.
[29] CB 60-6.
[30] CB 55.
In the Applicant’s submissions, his representative recounted many of the facts already disclosed to the Delegate.[31] The representative submitted further:
(1)that the Applicant had “continued with his studies from IT to business until he found the course of his desire”. Whilst the representative submitted that the Applicant was “continuously studying [at Stott’s College] and completing his” Business Diploma, he did not provide an explanation as to how the Applicant ostensibly continued to complete his studies without enrolment in the aforementioned course;[32]
(2)that the Applicant had complied “with all other visa conditions, including work limitation, maintaining health insurance, and informing provider for current contact details”; [33]
(3)that “at no given point ha[d] Mr Banduja indicated or admitted having developed strong economic ties with Australia which would impact his decision of going back to his home country.” The representative thus submitted that the Delegate had “misinterpreted [the Applicant’s] stay in Australia;[34]
(4)that the Applicant was not aware his enrolment in the Business Diploma had been cancelled, as he was not informed by Stott’s College. The representative confirmed that the Applicant was “still in the process of completing his units at Stott’s College”, although provided no particulars in this respect;[35]
(5)that the Applicant had “always been a law-abiding person in his home country and in Australia”; [36]
(6)that the Applicants family would be impacted by his inability to complete his Automotive Course, given his father having started an automotive workshop business;[37] and
(7)that the Applicant had “demonstrated evidence[] of being a Genuine Temporary Entrant” and that his “sole aim in Australia [was] to study and gain overseas skills and qualifications that [were] highly regarded in Sri Lanka”.[38]
[31] CB 56.
[32] CB 57-8.
[33] CB 57.
[34] CB 57.
[35] CB 58.
[36] CB 58.
[37] CB 58-9.
[38] CB 59.
At 11.30 am on 12 May 2020 the Applicant attended the scheduled hearing in person. The Applicant was accompanied by Mr Narwal.
On 13 May 2020 the Tribunal notified the Applicant that the Delegate’s decision to cancel the Applicant’s Student Visa had been affirmed; the decision itself was dated 12 May 2020.[39]
[39] CB 71-81.
TRIBUNAL DECISION
The Tribunal’s decision is 47 paragraphs long and spans 8 pages.
At paragraphs [14] to [17] of their outline of submissions filed 30 July 2025, the Minister’s representative summarised the Tribunal’s reasons. The Court as presently constituted has carefully read the Tribunal’s reasons and accept the summary as comprehensive, fair and properly referenced. The Court adopts it for the purposes of this judgment:
14. … At the hearing, the Tribunal put to the applicant that he had not been enrolled in any course from 6 August 2018 to 23 June 2019, which the applicant did not dispute. On this basis, and noting the evidence obtained from the applicant's PRISMS records (as set out in the delegate's decision), the Tribunal found the applicant was not enrolled in a registered course of study between 6 August 2018 and 23 June 2019, and had breached condition 8202(2)(a) (at [16] - [17]).
15. The Tribunal went on to consider whether to exercise its discretion to cancel the Student visa (at [20]).
16. The Tribunal noted that there were no matters specified in the Act or the Regulations which the Tribunal was compelled to consider, however, the Tribunal had regard to the discretionary considerations in PAM 3 - 'General visa cancellation powers'. The Tribunal found that:
(a) the purpose of the student visa was to allow travel to and stay in Australia in order to study. The lengthy period of time the applicant was not engaged in study indicated that he was not in Australia for the purpose of study, rather, during this period main focus was employment (at [22] and [35]);
(b) although the applicant was, at the time of decision, enrolled in a course of study, the applicant had not been enrolled for a period of 10 months, in breach of condition 8202 and that this period gave rise to a serious breach of the applicant's visa conditions, giving this consideration considerable weight (at [24]-[25]);
(c) the applicant and his family may suffer a degree of hardship should the visa be cancelled and may have a lease on an automotive repair business, but was not satisfied that the applicant could not undertake automotive studies in Sri Lanka and did not consider the hardship that might be faced by the applicant's family was sufficient to give this consideration some weight in favour of exercising the discretion to set aside the cancellation of the visa (at [27]- [32]).;
(d) although the applicant's father was involved in a motorcycle accident in 2016, the Tribunal was not satisfied that this incident played a role in the cessation of the applicant's studies in 2018, which led to the visa cancellation (at [34]). The Tribunal found, on the basis of the applicant's oral evidence , that his main focus during this period of non-compliance was his employment (at [35]);
(e) although the applicant's personal circumstances and issues may have played some role in his non-compliance with condition 8202(2)(a), there was no evidence to demonstrate that these circumstances were beyond the applicant's control to prevent his compliance (at [37]);
(f) there were no extenuating circumstances beyond the applicant's control for his failure to remain enrolled for the duration of his Student visa (at [38]);
(g) the applicant was aware that enrolment in a registered course of study was a condition of his visa and that it was his responsibility to ensure his compliance (at [39])
(h) there was no evidence that the applicant had been uncooperative toward the Department (at [40]);
(i) the applicant had not raised any concerns regarding the mandatory legal consequences of the cancellation, including a limited time to leave Australia and limited ability to apply for another visa. The Tribunal gave this consideration minimal weight in favour of the discretion to set aside the cancellation decision (at [41]); and
(j) there was no evidence that cancellation would result in any consequential cancellation under s140 of the Act or breach any international obligations (at [42]-[43]).
In weighing these factors in their totality, the Tribunal concluded that the reasons for cancelling the Applicant’s Student Visa outweighed any opposing reasons. The Delegate’s decision was thus affirmed.[40]
[40] CB 80.
The Court notes that there are extensive parts of the Tribunal’s decision which, in essence, copy and paste Delegate’s decision (in particular CB 36, c.f. CB 79 [37]-[38]).[41] Below the Court addresses whether the Tribunal properly conducted a review and brought an independent mind to its decision making responsibility.
PROCEEDINGS IN THIS COURT
[41] See also CB 35, c.f. CB CB 77-8 [25];
The application
On 17 June 2020, the Applicant applied to this Court for judicial review of the Tribunal’s decision (Originating Application). The application is brought pursuant to s 476 of the Act. The Applicant seeks the following orders:
(1)an order that the time for making the application be extended under s 477 of the Act;[42]
(2)an order that the decision of the Tribunal be quashed (writ of certiorari); and
(3)a writ of mandamus directed to the Tribunal, requiring them to determine the applicant’s application according to law.[43]
[42] Judicial Review Application, 2.
[43] Judicial Review Application, 3.
The Originating Application was filed outside the 35-day time limit specified in s 477(2) of the Act. Accordingly, the Applicant requires an extension of time within which to pursue the substantive matter in court.
Case management
On 17 July 2020, the Minister filed its response and opposed the making of all orders sought by the Applicant. The Minister submitted that the application failed to articulate or establish any jurisdictional error on the part of the Tribunal and moreover, that the application for judicial review was made 1 day out of time.[44]
[44] Ministers Response, 1-2.
On 4 November 2020, the Minister filed a bundle of relevant documents (Court Book).
On 13 May 2025, the Registrar of this Court issued orders (Registrar Order) including that:
(1)the Applicant to file and serve, at least 28 days before the hearing any:
(a)amended application in respect to the hearing;
(b)written submissions in respect to the hearing;
(c)further evidence in respect to the hearing;
(2)the First Respondent to file and serve, at least 14 days before the hearing any:
(a)amended response in respect to the hearing;
(b)written submissions in respect to the hearing; and
(c)further evidence in respect to the hearing.
No documents of the prescribed nature were amended or filed by the parties within the time limits specified by Registrar Order.
On the 27 May 2025 the matter was allocated to the Court as presently constituted. On 28 May 2025 the parties were notified by the Court as presently constituted, that the matter had been listed for an extension of time and final hearing at 10.15 am on 9 July 2025.
On 26 June 2025, consent orders were made in response to the revocation of the Applicant’s lawyers (Imran Warraich) practicing certificate, in order to give the Applicant sufficient time to seek advice and prepare for his matter. The orders were as follows:
(1)that the name of the Minister be amended to the “Minister for Immigration and Citizenship”;
(2)the Extension of Time hearing listed for 9 July 2025 be vacated;
(3)the matter be listed for an Extension of Time hearing before Judge Johns at 10.15 am on 13 August 2025; and
(4)that costs be reserved.
On 30 July 2025, the First Respondent filed an outline of submissions.
As such, the materials before the Court are as follows:
(1)the Applicant’s application for judicial review, and extension of time, dated 17 June 2020;
(2)an affidavit filed by the Applicant on 17 June 2020;
(3)a Court Book numbering 90 pages, filed by the First Respondent on 4 November 2020 (marked as Exhibit R1);
(4)an outline of submissions, filed by the First Respondent on 30 July 2025.
Hearing
At the hearing, the Applicant appeared before the Court without legal representation. The Minister was represented by Crishelle Lopez, solicitor at HWLE Lawyers.
The Court confirmed with the Applicant that they had been provided a copy of the Court Book and the Minister’s written submissions.
Noting that the Applicant was not legally represented, the Court also explained to them that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decisions.
The Court invited the Applicant to address the factors relevant to the grant of extension of time (discussed below). The Applicant’s responses are discussed in the consideration that follows.
RELEVANT LEGISLATION
s 477 of the Act provides time limits which applies to proceedings for judicial review of the Tribunal’s decisions in respect of which the Court has jurisdiction and the basis upon which it may be extended. At the date of the application (17 June 2920), it read as follows:
477 Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35-day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
"date of the migration decision" means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975--the date of the written decision under that subsection; or
(b in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5--the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7--the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca) in the case of a migration decision made by the Immigration Assessment Authority--the date of the written statement under subsection 473EA(1); or
(d) in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
s 368 of the Act identifies when a written decision made under Part 5 is taken to have been made; at the date of the application, it read as follows:
368 Tribunal’s decision and written statement
…
(2) How and when written decisions are taken to be made
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.
s 116 of the Act confers the Ministers power to cancel a visa for non-compliance; at the date of the Ministers decision it read as follows:
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; or
…
(2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.
(3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exit prescribed circumstances in which a visa must be cancelled.
Clause 8202 of schedule 8 of the Regulations requires that a grantee of a Student Visa be enrolled in a registered course. At the time of the Delegate’s decision it read:
Schedule 8, clause 8202
(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.
(3) A holder meets the requirements of this subclause if neither of the following applies:
(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007
(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.
CONSIDERATION
Because the Tribunal’s decision was dated 12 May 2020, the Applicant had until 16 June 2020 to seek judicial review. Because the application was not filed until 17 June 2020, it was 1 day out of time.
Consequently, the Court must consider the two limbs of s 477(2) of the Act to determine whether it is appropriate to grant the Applicant an extension of time.
s 477(2)(a) – 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 giving reasons as to why the extension of time should be granted.
In the originating application, the Applicant sought leave of the Court to grant him an extension of time. The Applicant stated (reproduced without alteration):
I went to FCC in person two weeks ago and I found that the court is not accepting appeals in person and it has to be online. I tried for few days and could not figure it out how to do the lodgement online. I tried to get the affidavit attested from few police stations and they are not witnessing the documents due to covid-19. I tried hard to lodge it yesterday as I thought it was the last day to lodge it, but due to some technical error, could not lodge it on time.
Here, the Applicant requested an extension of time in writing and provided “grounds” explaining why he believed the extension should be granted. s 477(2)(a) of the Act is thus satisfied.
s 477(2)(b) – Necessary in the interests of justice
In relation to the second limb in s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
The factors which the court may consider under this limb are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen[45] (confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs),[46] the most common factors considered by the Court in matters of this sort include:
(a)the length of the delay;
(b)the explanation for the delay;
(c)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(d)the impact on the applicant; and
(e)whether the proposed substantive application for judicial review has “merit”.
[45] [1984] FCA 176.
[46] [2022] HCA 28, [12].
When determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”.[47] Importantly, an Applicant need therefore 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 which may warrant an extension being granted.[48]
[47] MZABP v Minister for Immigration & Border Protection [2015] FCA 1392.
[48] MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (‘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[49] , the High Court provided the following examples of such circumstances (references omitted):
[I]f 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.
[49] [2022] HCA 28, [18].
It is now necessary to consider each of these factors to decide whether it is, in all the circumstances, appropriate to grant the Applicant an extension of time.
Length of delay
As outlined above, the Application fell outside the prescribed time limit by a single day. That delay is short.
However, the efficient administration of justice necessitates the observance of time limits. This factor marginally weighs against granting the Applicant an extension of time.
Explanation for the delay
At hearing, the Applicant provided no additional explanation for the delay in question that had not already been tendered in the application itself.
The first lock-down in Melbourne finished on 12 May 2020 (the date of the Tribunal’s decision). The next lock-down in Melbourne commenced on 9 July 2020. Notwithstanding the lifting of some restrictions many other health and safety measures that disrupted normal life continued to apply. Therefore, the Court accepts that the Applicant likely experienced difficulties in the lodgement of his application as the result of health and safety measures adopted by public institutions (such as this Court and police who might ordinarily have witnessed affidavits) during the COVID-19 pandemic. However, while being sympathetic to the difficulties experienced by the Applicant his explanation does not account for the entirety of the delay. As detailed by the Applicant, two weeks elapsed between the time he attended the Melbourne registry to lodge his application and the 17th of June when he successfully lodged this application online. The Court does not regard difficulties to do with the attestation of his Affidavit, and an ostensibly isolated, technical error with e-Lodgement (for which there was no evidence provided to the Court) as accounting for the entirety of this period.
For these reasons, the Court does not consider the explanations provided by the Applicant to satisfactorily account for the delay. This factor therefore weighs moderately against the granting of an extension of time.
Prejudice
In submissions the Minister accepted, given the shortness of the Applicant’s delay, that only minimal prejudice would be occasioned by the granting of the extension of time application.
At hearing, the Minister claimed no particular prejudice in relation to the matter.
Significantly, “the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing”.[50] Accordingly, the Court considers this factor neutral regarding the question of whether or not to grant the extension of time.
[50] EYY18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 947, [49], citing SZTRYvMinister for Immigration & Border Protection [2015] FCAFC 86, [6].
Impact on the applicant
At hearing, the Minister conceded that the refusal of an extension of time would have a significant impact on the Applicant.
In practical terms, the applications refusal would place the Tribunal’s decision outside the reach of the judicial review process; as such, the decision would stand irrespective of any jurisdictional error contained therein.
For the Applicant, the definitive cancellation of his Student Visa will limit his ability to apply for subsequent visa’s in Australia; in all likelihood, he will be forced to return to Sri Lanka without having obtained any educational qualification in this country, as was his original intent. There is no evidence before this Court which would, however, indicate that the Applicant’s failure to obtain an automotive qualification in Australia would occasion a persuasive degree of hardship to his families’ business, particularly when similar (if not equivalent) qualifications are obtainable in his country of origin.
The Applicant met his current wife in this country. Although she, herself is Sri Lankan the Applicant explained that their union had not been welcomed by their families. This might cause a negative impact on them if they returned or were removed to Sri Lanka.
It is also significant that one of the defining characteristics of a Student Visa is its time-limited nature; that is, the fact that it is granted upon the mutual understanding that its recipient is to return to their country of origin upon the visas underlying purpose (e.g. the obtainment of a qualification) coming to fruition. The fact the Applicant in question has not managed to obtain the qualification he originally sought does not detract from the inherently time-limited nature of his visa and thus the fact that much of the hardship occasioned by its cancellation was, from the date of grant, anticipated.
Taken wholistically, this factor weighs slightly in favour of granting the Applicant’s request for an extension of time.
Merits
The final and most significant factor in determining whether to grant the Applicant an extension of time to file the Judicial Review Application is the merits of the Originating Application itself.
At the hearing before the Court, the Applicant was invited to make submissions about:
(1)why they believe the Tribunal made a jurisdictional error; and
(2)each of the grounds of review in his Original Application and accompanying affidavit.
To the extent that the Applicant made submissions in relation to the specific grounds, they are summarised below in the context of considering each of the grounds. To the extent that the Applicant made more general submissions, those submissions largely invited the Court to engage in impermissible merits review of the Tribunal’s decision. As this Court explained to the Applicant at the hearing, the Court cannot consider for itself whether the Applicant meets the criteria for a Student Visa. To the extent that the Applicant’s submissions invite the Court to engage in merits review, they do not establish jurisdictional error in the Tribunal’s decision.
The Minister submitted that the decision of the Tribunal was not affected by jurisdictional error. The Court incorporates (without repetition) are paragraphs 28 to 40 of the Minister’s outline of submissions.
The grounds of review asserted by the Applicant in his Originating Application and accompanying affidavit will now be addressed in turn.
Ground One
1.Natural justice been denied at AAT and by the delegate of Minister for Home Affairs as no consideration been given to the evidences supplied to them.
The court invited the Applicant to provide further particulars on what evidence the Tribunal had failed to consider. The Applicant first indicated that the Tribunal did not consider the impact on his enrolment caused by his father’s involvement in a motorcycle accident and the need for the Applicant to return to Sri Lanka. Contrary to this contention, the Court drew the Applicant’s attention to paragraph 34 of the Tribunal’s decision, which indicated that it had considered the evidence tendered in support of his father’s motorcycle accident.[51] The Tribunal noted that “his father’s accident occurred two years before cancellation of the applicant’s visa. The Tribunal was not persuaded that his incident, whilst unfortunate, had played any role in the applicant’s cessation of his studies in 2018.” Clearly the matter was considered by the Applicant. Before this Court, the Applicant did not dispute the Tribunal’s consideration of these circumstances.
[51] CB 79 [34].
The Applicant went on to contend that the Tribunal had failed to consider the hardship he experienced as a result of having entered into a relationship with a woman of which his family did not approve. More specifically, the Applicant claimed he was under pressure from his family in Sri Lanka to terminate the relationship. The Applicant did not provide further particulars before this Court on how these pressures resulted in, or contributed to, his period of unenrolment. In response, Ms Lopez drew the Court’s attention to paragraph 36 of the Tribunal’s decision, in which the Tribunal expressly considered this matter. The Court notes that the story given to this Court differs slightly from the account given to the Tribunal, in that the Applicant then claimed that the relationship had ended as a result of his family’s disapproval.[52]
[52] CB 79 [36].
The Applicant was unable to provide any further examples of evidence that he says the Tribunal failed to consider; there is thus, no evidence that the Applicant was denied natural justice. No reasonably arguable case of jurisdictional error on behalf of the Tribunal is established by Ground One.
Grounds Two
2. There is a jurisdictional error made by the Tribunal as the Tribunal wrongly applied s116 for affirming the original decision of the Immigration to cancel the student visa while not considering all the circumstance to find out whether there were are any genuine grounds for the cancellation or not.
3. No Consideration given to the evidence supplied and the continuing progress in the study regardless of cancellation of student visa.
The Court invited the Applicant to elaborate upon the jurisdictional error alleged to have arisen by way of Ground Two. The Applicant declined to submit any further details or explanation.
Relatedly, item 8202(2)(a) of Schedule 8 of the Migration Regulations 1994 (Cth) (Condition 8202) requires that the holder of the relevant Student Visa be “enrolled in a full-time registered course”.
The Applicant did not contest they were unenrolled for a 10-month period between 6 August 2018 and 23 June 2019. Accordingly, there was a breach of their visa conditions.
Section 116(1)(b) of the Act empowers the Minister to cancel a visa if satisfied the holder has not complied with its attached conditions; this is a discretionary power, subject to none of the prescribed circumstances in which a visa is not to be cancelled being present.[53] There has been no contention that any such prescribed circumstances are applicable.
[53] Migration Act 1958 (Cth) s 116(2).
The discretionary nature of s 116(1) moreover, does not require that the Minister have regard to specific circumstances. However, the discretion must be exercised reasonably.
Noting the breach of the condition and the other matters considered by the Tribunal it was open to the Tribunal to affirm the decision of the Delegate to exercise their discretionary power to cancel the Applicant’s visa, on the basis that the Applicant had not complied with the conditions of their visa. No reasonably arguable case of jurisdictional error on behalf of the Tribunal arises by reason of Ground Two.
Grounds Three and Five
3. No Consideration given to the evidence supplied and the continuing progress in the study regardless of cancellation of student visa.
5. The Tribunal did not consider the facts and documents which were provided for the explanation for condition 8202 breach.
The Court invited the Applicant to elaborate upon the jurisdictional error alleged to have arisen by way of Grounds Three and Five. The Applicant made no submission.
As reasoned in paragraphs 80 to 83, there is no evidence before the Court that the Tribunal failed to consider any materials or arguments advanced by the Applicant as explanation for his period of non-enrolment. No reasonably arguable case of jurisdictional error on behalf of the Tribunal arises by reason of Grounds Three or Five.
Ground 4
4. The tribunal failed to consider this case as fresh and relied on the department of Home Affairs decision to cancel the visa for breaching condition 8202.
The Court invited the Applicant to elaborate upon the jurisdictional error alleged to have arisen by way of Ground Four. The Applicant made no submission.
The Court agrees with the submission made by the First Respondent that the Tribunal took into consideration evidence given to it after the making of the Delegate’s decision.[54] In this regard, the Tribunal’s decision cannot be characterised as a mere reproduction of the Delegate’s, nor can it be said that the Tribunal failed to make its decision of own its volition. While the similarities between particular sections of the decisions,[55] are concerning, they do not establish that the Tribunal failed to review the decision of the Delegate and make its own decision about the cancellation. The fact that the Tribunal ultimately came to the same conclusion as the Delegate is not evidence that it did not consider the matter for itself. It clearly did. No reasonably arguable case of jurisdictional error on behalf of the Tribunal arises by reason of Ground Four.
[54] See, e.g. CB 74-81 [15], [29], [35], [37] and [46].
[55] See, e.g. CB 36, c.f. CB 79 [37]-[38].
CONCLUSION
Mindful of the Court’s obligations towards unrepresented litigants as outlined in MZAIB at [59]-[77], [100] and [112]-[113], the Court has scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error. The Court has 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, the Court is of the view that no reasonably arguable case of error has been disclosed on the Tribunal’s part.
As the application in this case was filed with this Court one day outside the statutory timeframe, the Court may only grant an extension of time for the making of this application if satisfied such extension is in the interests of the administration of justice.
Taking into account all of the considerations above, particularly the absence of a satisfactory explanation for the delay in filing the application on time and the lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, the Court is not satisfied that it is in the interests of the administration of justice that time be extended in this matter.
Accordingly, the application is dismissed.
The Court will hear the parties on costs.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 15 August 2025
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