Millawithanachchi v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1310

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 1391

MZABP 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  

  1. 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.

  2. 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).  

  3. 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…

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Millawithanachchi v Minister for Immigration and Citizenship [2025] FedCFamC2G 1310
Case
[2025] FedCFamC2G 1310
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Millawithanachchi v Minister for Immigration and Citizenship concerns an application for an extension of time by the Applicant, a citizen of Sri Lanka, to challenge the cancellation of their Student Visa. The Applicant, who arrived in Australia on 3 August 2015, was issued a notice of intention to cancel (NOICC) on 4 July 2019 due to a breach of the visa condition mandating enrolment in a registered course between 6 August 2018 and 23 June 2019. The Applicant responded to the NOICC on 11 July 2019, attributing the breach to academic failure, a family emergency, and a subsequent loss of interest in the course. Despite this, the Delegate decided on 6 August 2019 to cancel the visa, a decision the Applicant now seeks to challenge.

The central legal issue in this case was whether the Court should exercise its discretion under s 477(2) of the Act to grant an extension of time for the Applicant to lodge an appeal against the visa cancellation. The Applicant’s application was one day late, and the explanation provided for the delay was deemed inadequate. The Court had to consider whether there were sufficient grounds to extend the time limit for the application, particularly in light of the administrative necessity for timely and efficient visa decisions.

In ruling on the matter, the Court held that the Applicant did not provide a satisfactory explanation for the one-day delay in lodging the application, nor did they demonstrate an arguable case of jurisdictional error that would warrant an extension of time. The Court found that the Applicant’s circumstances, while unfortunate, did not present a compelling reason to depart from the statutory time limits for judicial review. Consequently, the application for an extension of time was dismissed.

The Court's decision resulted in the dismissal of the Applicant's application for an extension of time. The Applicant's appeal against the visa cancellation was thus not heard due to the late filing of the application.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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