Sethi v Minister for Immigration and Citizenship
[2025] FedCFamC2G 761
•26 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sethi v Minister for Immigration and Citizenship [2025] FedCFamC2G 761
File number(s): MLG 2879 of 2019 Judgment of: JUDGE JOHNS Date of judgment: 26 May 2025 Catchwords: MIGRATION – extension of time – four days out of time – student visa – inadequate explanation for the delay – no reasonably arguable case for jurisdictional error – application dismissed. Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 476, 477
Cases cited: EWH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1451
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
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: 103 Date of hearing: 26 May 2025 Place: Melbourne Applicant: In-person Solicitor for the Respondents Mr Matthew Daly of Mills Oakley ORDERS
MLG 2879 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHIV SETHI
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINSTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
26 MAY 2025.
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
2.The application for judicial review filed on 3 September 2019 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 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 then Administrative Appeals Tribunal (Tribunal).
By that decision, the Tribunal affirmed the decision of a delegate of the then Minister for Immigration and Border Protection (as the Minister was then called) (Delegate) to refuse to grant the Applicant a Student (Subclass 500) visa (Student Visa).
This proceeding was brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act). Unfortunately, the application was filed 4 days outside the 35-day period prescribed under that section of the Act. In the circumstances, the Applicant must satisfy the Court that it is necessary in the interests of the administration of justice to make an order extending time for the filing of their application.
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.
The application for a Student Visa
The Applicant is a citizen of India and arrived in Australia on 9 August 2014 as the holder of a Higher Education (Subclass 573) visa.[1] That visa was granted to allow him to undertake a Bachelor of Hospitality Management at Holmesglen Institute in Melbourne. That course was due to be completed by 30 June 2017[2]. However, the Applicant withdrew from the course after two semesters.[3]
[1] CB 7 and 12 – 13
[2] CB 114
[3] CB 34.
Before coming to Australia, the Applicant lived in Singapore for various periods between July 2012 and May 2014.[4] While there, the Applicant completed a Diploma in Hotal and Restaurant Services from Dimension International College (which he finished in February 2013).[5]
[4] CB 12.
[5] CB 25.
Since arriving in Australia, the Applicant has returned to India only once. That was in January 2016, for a period of 15 days, to attend a family function.[6]
[6] CB 75.
On 30 August 2017, the Applicant lodged an application for Student Visa.[7] In support of his application, the Applicant submitted Confirmation of Enrolments (COEs) for a package of courses to be undertaken at Stott’s College in Melbourne.[8] These included:
(1)Certificate III in Commercial Cookery (25 September 2017 to 16 September 2018)[9],
(2)Certificate IV in Commercial Cookery (24 September 2018 to 1 April 2019)[10],
(3)Diploma in Hospitality Management (15 April 2019 to 22 September 2019)[11], and
(4)Bachelor of Business (18 November 2019 to 30 June 2021).[12]
[7] CB 1 – 29.
[8] CB 77.
[9] CB 84.
[10] CB 85.
[11] CB 86.
[12] CB 87.
In support of his application, the Applicant also submitted a Genuine Temporary Entrant (GTE) statement.[13] In that statement, the Applicant explained his motivations to continue to study in Australia.[14] The Applicant also detailed the challenges he faced during his time at the Holmesglen Institute.[15] He attributed his academic setbacks to a car accident and claimed that he did not have a lot of support from the Holmesglen Institute which led him to withdraw from the course.[16] He stated that he remained committed to pursuing a career in hospitality and planned to return to India to start a high-end catering and event management business.[17]
[13] CB 34 – 38.
[14] CB 35.
[15] CB 34.
[16] Ibid.
[17] CB 35.
Delegate’s decision
On 6 November 2017, the Delegate refused to grant the Applicant a Student Visa.[18] The Delegate was not satisfied that the Applicant met the genuine temporary entrant criterion under cl.500.212 of the Migration Regulations 1994 (Cth) (GTE Criterion).[19] In reaching this decision, the Delegate:
(1)noted that the Applicant had not showed sufficient personal and economic ties to India, which would have otherwise provided a strong incentive for the Applicant to return to India after the completion of his studies[20],
(2)observed that the Applicant had already been in Australia for over three years and proposed to remain until at least June 2021[21],
(3)found the Applicant’s academic trajectory to be inconsistent[22],
(4)was concerned that the Applicant may be attempting to use the student visa program to prolong his stay in Australia rather than to undertake genuine study[23], and
(5)noted that the Applicant had not provided sufficient evidence of having explored similar study options in India.[24]
[18] CB 49 – 53.
[19] CB 49.
[20] CB 51.
[21] Ibid.
[22] CB 51 – 52.
[23] CB 52.
[24] Ibid.
Pursuant to s 476(2)(a) of the Act, this Court does not have jurisdiction to review the Delegate’s decision.[25]
[25] Migration Act 1958, s 476(2)(a).
Application to the Tribunal
On 16 November 2017, the Applicant applied to the Tribunal for review of the Delegate’s decision.[26]
[26] CB 54 – 55.
On 27 February 2019, the Applicant was invited by the Tribunal to provide information pursuant to subsection 359(2) of the Act. He was asked to provide further information to demonstrate that he was:
(1)currently enrolled in a registered course of study, and
(2)a genuine applicant for entry and stay in Australia as a student.[27]
[27] CB 65 – 67.
The Tribunal requested that the Applicant address the above criteria and return a completed Student Visa Information Form by 13 March 2019.[28]
[28] CB 65-67.
On 14 March 2019, one day outside the prescribed timeframe, the Applicant provided a completed response to the Tribunal’s request.[29] In his response, the Applicant:
(1)stated that he had completed a Certificate III in Commercial Cookery at Stott’s College in September 2018[30] and was currently enrolled in Certificate IV in Commercial Cookery, which was due to be completed in April 2019[31],
(2)detailed other future enrolments in a Diploma of Hospitality Management and a Bachelor of Business[32],
(3)provided reasons for withdrawing from his previous course at the Holmesglen Institute, primarily that he was involved in a car accident which affected his studies (without providing any corroborating evidence in support of this claim)[33],
(4)detailed personal and family information, including his long-term goal of returning to India and starting his own business[34], and
(5)provided employment history in Australia, including working as a cook and chef from September 2017 till March 2019[35].
[29] CB 73 – 91.
[30] CB 77.
[31] Ibid.
[32] Ibid.
[33] CB 78.
[34] Ibid; CB 80.
[35] CB 78.
On 5 July 2019, the Tribunal wrote again to the Applicant pursuant to s 359A(1) of the Act enclosing updated Provider Registration and International Student Management System (PRISM) data obtained on 4 July 2019.[36] The Tribunal advised the Applicant that the PRISM record indicated that his:
(1)enrolment in Certificate IV in Commercial Cookery had expired on 1 April 2019, and
(2)future enrolments in the Diploma of Hospitality Management and Bachelor of Business had also been cancelled by the education provider.
[36] CB 88 – 94.
The Tribunal invited the Applicant to provide comments or respond to this information by 19 July 2019.[37]
[37] CB 94.
On 19 July 2019, the Applicant appointed a migration agent from ‘Aussizz Migration and Education Consultants’ to be his representative and authorised recipient for all correspondence from the Tribunal.[38] The Applicant also provided a written response to the Tribunal’s invitation[39], in which he stated that:
[38] CB 98.
[39] CB 99.
(1)he had been unaware that his COE had expired on 1 April 2019 and that his enrolment had been cancelled until he received the notification from the Tribunal,
(2)although he had been informed by his education provider that his fees were overdue, he was not told that his enrolment had been cancelled,
(3)he had attempted to resolve the matter with the education provider by paying the outstanding fees, but they did not give him a “positive response”,
(4)due to financial constraints, he was unable to meet the college’s request for fees that were outstanding and a deposit, and
(5)he had secured enrolment at Everest Institute of Education Pty Ltd in the following courses:
(a)Certificate III in Commercial Cookery (starting 21 July 2019)[40],
(b)Certificate IV in Commercial Cookery (starting 3 August 2019)[41], and
(c)Diploma in Hospitality Management (starting 10 May 2021)[42],
[40] CB 104.
[41] CB 105.
[42] CB 106.
In support of his written response, the Applicant attached documents which included email correspondence with Stott’s College[43] and copies of new COEs from Everest Institute.[44]
[43] CB 101 – 102.
[44] CB 104 – 106.
On 26 July 2019, the Tribunal affirmed the decision under review on the basis that the applicant did not satisfy the GTE Criterion.[45]
[45] CB 110-125.
On 30 July 2018, the notification of decision, the decision itself, and an accompanying factsheet titled “Information about decision – MR Division” (which contained information about the Applicant’s review rights) was sent to his migration agent.
TRIBUNAL’S DECISION
The Tribunal’s decision is 10 pages long and spans 55 paragraphs.
At paragraphs 15 to 26 of the outline of submissions filed by the First Respondent (Minister) on 4 April 2025, solicitors for the Minister summarised the Tribunal’s reasons. Having carefully read the Tribunal’s reasons and the Court accepts counsel’s summary as comprehensive, fair and properly referenced. The Court adopts it for the purposes of this judgment (citations omitted):
15.The Tribunal summarised the procedural history of the matter and noted that although the applicant responded to its subsection 359(2) invitation one day outside of the prescribed timeframe, the Tribunal considered the content of the information.
16.The Tribunal was satisfied that the section 359(2) invitation had been properly sent to the applicant via his nominated address provided in his review application and turned to consider whether it should adjourn the review under subsection 363(1)(b), and having considered the relevant authority decided not to exercise its discretion to adjourn the review and proceeded to make its decision based on the information before it, including the information it received from the applicant in response to its section 359 and 359A invitations.
17.The Tribunal identified that the issue arising on the review was whether the applicant satisfied the enrolment requirement in clause 500.212 of Schedule 2 to the Regulations and noted the relevant considerations it was required to have.
18.The Tribunal found the applicant had not submitted any supporting information or evidence that was relevant to the matter in front of it and raised its doubts that the applicant had completed any course of study in Australia since August 2014.
19.The Tribunal accepted that the applicant had sought to maintain enrolment in a course of study and was aware the applicant repeatedly enrolled in a course of study in Australia when he had already completed a similar course in Singapore, and was surprised the applicant was unaware his current CoE had expired, and his future enrolment had been cancelled.
20.The Tribunal found the applicant sought to retain residence in Australia by providing the Tribunal a copy of a CoE that had a minimum amount of tuition fees paid, and in the same course he had already enrolled in.
21.The Tribunal did not find the applicant to be a genuine temporary student on the basis that the applicant had provided only minimal evidence of course enrolment and tuition payment, intended to continue residing and working in Australia, and found the applicant was only serious about continuing his residence so he could work and receive a high income.
22.The Tribunal found the applicant had “little” community ties in India and based on the information provided by the applicant about his life in Australia, concluded that the applicant’s established ties to Australia provided a strong incentive for him to remain
23.In assessing the value of the course to the applicant’s future and engagement in his studies, the Tribunal found that the applicant had failed to provide evidence in support of his application that gave any indication of “academic progress” or “completion or achievement”, and that his progress was “minimal” and enrolments appeared to be a replica of his “prior studies in Singapore”.
24.The Tribunal found that the applicant was seeking to undertake a course that appeared to complement his current level of education which would not assist him to obtain employment or improve employment prospects in India. Further, the Tribunal found that the applicant’s current and future enrolments had “little relevance to his past or future employment.”
25.The Tribunal ultimately found that the applicant’s student visa application was intended primarily for maintaining ongoing residence and that the applicant had undertaken a series of short, inexpensive courses and has been onshore for some time without successfully completing a qualification.
26.The Tribunal did not consider there was any other relevant material pertaining to the applicant’s satisfaction of clause 500.212 and based on the information it had before it, was satisfied that the applicant was not a genuine temporary entrant and accordingly affirmed the decision of the delegate not to grant the applicant a student visa.[46]
PROCEEDINGS IN THIS COURT
[46] First Respondent’s Outline of Submissions filed 4 April 2025.
The application
On 3 September 2019, the Applicant applied to this Court for judicial review of the Tribunal’s decision dated 26 July 2019 (Originating Application). The application is brought pursuant to s 476 of the Act. The Applicant seeks the following orders:
(1)An order quashing the decision of the Tribunal dated 26 July 2019 affirming the refusal of the Student Visa,
(2)A writ of mandamus directing the Tribunal to reconsider the application according to the law,
(3)An injunction restraining the Minister from taking any adverse action against the Applicant arising from the Tribunal’s decision, and
(4)A writ of prohibition restraining the Minister from taking any actions upon or giving effect to the Tribunal’s decision dated 30 July 2019 (noting that the Applicant believed this to be the date of decision, as he received the decision on this date).
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 13 September 2019, the Minister filed its response and opposed the making of the orders sought by the Applicant. The Minister submitted, among other things, that this Court has no jurisdiction to review the Tribunal’s decision on the basis that it was not filed within the 35-day of the date of the Tribunal’s decision.
On 30 June 2022, the Minister filed a bundle of relevant documents (Court Book).
On 5 March 2025, a Registrar of this Court issued an order (Registrar’s Order). The Registrar’s Order amended the name of the:
(a)First Respondent to ‘Minister for Immigration and Multicultural Affairs’, and
(b)Second Respondent to ‘Administrative Review Tribunal’.
The Registrar’s Order also directed that the:
(a)matter be listed for an extension of time hearing on a date to be advised,
(b)Applicant file any amended application with proper particulars, written submissions, and further evidence by 21 March 2025, and
(c)Minister file any written submissions and further evidence in response by 4 April 2025.
The Applicant did not file an amended application and did not provide any submissions in support of his application for an extension of time, despite being invited to do so.
On 4 April 2025, the Minister complied with the Registrar’s Order by filing written submissions.
Therefore, the materials before the Court are:
(a)the application for judicial review lodged on 3 September 2019,
(b)an Affidavit filed by the Applicant on 3 September 2019 (marked as Exhibit A1),
(c)a response filed by the Minister on 13 September 2019,
(d)a Court Book numbering 128 pages filed on 30 June 2022 (marked as Exhibit R1), and
(e)Outline of submissions filed by the Minister on 4 April 2025, and
(f)Email from the Applicant’s migration agent to the Applicant which attached the notification of the Tribunal’s decision dated 26 July 2025 and accompanying factsheet titled “Information about decision – MR Division” (marked as Exhibit A2). Exhibit A2 was provided by the Applicant during the hearing before this Court. It was received despite the Applicant having not complied with the Registrar’s Order.
The matter was allocated to my Chambers on 7 April 2025. On the same day, the matter was listed for an extension of time hearing before me on 21 May 2025.
The extension of time hearing
At the hearing, the Applicant appeared before the Court without legal representation. The Minister was represented by Mr Matthew Daly, solicitor, of Mills Oakley.
The Court confirmed with the Applicant that they had received 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 informed the Applicant that his application was filed outside the prescribed period. The Court explained that, despite the late filing of the application, the Applicant can ask the Court for an extension of time within which to file his application.
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 Tribunal’s decision, 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
CONSIDERATION
Because the Tribunal’s decision was dated 26 July 2019, the Applicant had until 30 August 2019 to seek his judicial review. Because the application was not filed until 3 September 2019, it was four days 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 his originating application, the Applicant sought leave of the Court to grant him an extension of time. The Applicant stated (reproduced without alteration):
I was under the impression the 35 days to lodge the Federal court application is from the date the decision from AAT was provided to me, which was on 30th July 2019. I was not aware the 35 days are from the date of the decision from the member otherwise I would have made the submission accordingly.
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 [1984] FCA 176; (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), 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”.
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 stated above, the Applicant’s delay in filing his application amounts to four days out of time.
The Minister submits, and the Court agrees, that the delay in this matter is short. This factor weighs in favour of granting the Applicant an extension of time.
Explanation for the delay
The Applicant’s explanation for the delay is that he mistakenly believed that the 35-day deadline for filing the Originating Application commenced from the date that he received the Tribunal’s decision from his migration agent (on 30 July 2019) rather than the date that the decision was made (on 26 July 2019).
At the hearing, the Applicant produced an email that he received from his migration agent which enclosed the Tribunal’s decision.[47] The body of that email read:
Hi Shiv.
PFA the AAT outcome in your Student Visa refusal case. The AAT has agreed with the department’s decision and have refused to grant you the student visa.
You have 35 days to seek Judicial review. Contact us ASAP.
Feel free to revert back for any further queries
…
[47] Exhibit A2.
The Court accepts that the email from the migration agent was capable of creating confusion. The agent’s reference to “35 days” without specifying the relevant commencement date could have reasonably led the Applicant to assume that the appropriate time limit began when he received the email (i.e., on 30 July 2019).
However, the Tribunal’s decision which was attached to the email clearly stated that the Tribunal’s decision was made on 26 July 2019. Additionally, the accompanying factsheet titled “Information about decisions – MR Division” stated that any application for judicial review of the Tribunal’s decision must be made within 35 days of that decision:
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.[48]
[48] CB 127.
While the Court does not consider the Applicant’s explanation to be particularly compelling (especially when the Tribunal’s decision and the accompanying factsheet clearly set out the correct timeframe in which to seek a review of the Tribunal’s decision), it accepts that the Applicant relied on a vague statement from his migration agent. As such, this factor weighs marginally in favour of granting the extension of time.
Prejudice
The Minister concedes he would not suffer substantial prejudice if the extension were to be granted.
This factor is a neutral consideration in deciding whether to grant the Applicant an extension of time.
Impact on the Applicant
If the extension of time is not granted, the Tribunal’s decision will stand, along with all the consequences that will flow from that decision (including possibly the prospect of being removed from Australia). 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).
This factor weighs in favour of granting the Applicant an extension of time.
Merits of the substantive application
Arguably, the most critical factor for consideration when determining whether to grant an extension of time for an application is whether the proposed application for judicial review has any “arguable prospect of success”.
When determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”.[49] 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.[50]
[49] MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
[50] 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 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], 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 error has not been disclosed on the Tribunal’s part and, for the following reasons, the Court is not persuaded that a reasonably arguable case of jurisdictional error arises out of the substantive application.
At the hearing before the Court, the Applicant was invited to make submissions about:
(a)why they believe the Tribunal made a jurisdictional error, and
(b)each of the grounds of review in his originating 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. Incorporated (without repetition) are paragraphs 39 to 59 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.
Grounds in the Originating Application
Ground 1
1.The Administrative Appeals Tribunal did not provide enough weight to the situation/facts I tried to explain/present in my submission while they had put more weightage on disposing of the case without conducting a hearing and providing me an opportunity to provide details.
By this ground, the Applicant claims that the Tribunal failed to give “enough weight” to the evidence that he presented, and that it denied him the opportunity to give further evidence by not conducting a hearing.
To the extent that this ground claims that the Tribunal failed to consider the Applicant’s evidence, it must be rejected. During the hearing, the Court took the Applicant to the Tribunal’s decision and asked him what evidence the Tribunal failed to consider in its reasons. The Applicant could not answer. It is clear that the Tribunal did engage with the Applicant’s claims and evidence. In the present matter, the Applicant simply disagrees with the decision the Tribunal made.
As to the latter part of this ground which relates to the Applicant’s complaint that no hearing was held, this too is without merit. The Tribunal had issued a valid invitation under s 359(2) of the Act.[51] That invitation clearly stated that a failure to respond within the prescribed time may result in the Tribunal making a decision without holding a hearing:
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.[52]
[51] CB 66 – 67.
[52] CB 67.
That invitation also stated that the Applicant could seek an extension of time to respond.[53] No such request was made by the Applicant. The Applicant accepted during the hearing that his response was filed one day late and that, in light of the Tribunal’s notice, he could not complain about not being afforded a hearing. In any case, the Court notes that the Tribunal considered the information that was filed late.
[53] Ibid.
No arguable case of jurisdictional error arises in relation to ground one.
Ground 2
2.I always intended to study in Australia to gain international exposure and quality education. I have always wished to start my own restaurant in India after my study in Australia. I would wish to achieve my dream of starting a restaurant after completion of my studies. The Tribunal member did not place any weight on this information provided with GTE and thereafter in all submissions.
By this ground, the Applicant claims that the Tribunal failed to “place any weight” on the information he provided in his GTE statement and subsequent submissions, namely that he “always intended to study in Australia to gain international exposure and quality education” and that he intended to start his own business in India. This ground does not disclose a jurisdictional error.
The Tribunal was not required to accept the Applicant’s stated intentions at face value. Despite what the Applicant’s claims, the Tribunal did consider the Applicant’s stated motivations and aspirations (including his plans to start his business in India) in its decision.[54] However, it was open to the Tribunal to give those assertions limited weight in the broader context. In its decision, the Tribunal concluded that the Applicant’s study plans appeared to be more directed to maintaining ongoing residency as opposed to gaining qualifications relevant to his stated goals. That finding was reasonably open to the Tribunal on the basis of the evidence before it. That evidence included that in a period of 4 years, the Applicant had only been to India for 15 days and his course of study proposed that he be in Australia until 2021.
[54] CB 115.
No arguable case of jurisdictional error arises in relation to ground two.
Ground 3
3.I was regularly attending my classes for the course in the university but was not aware that my CoE expired on 01 April 2019, and neither was I aware that I was not enrolled in the course until I received email from the College in June 2019 followed by notification from the Tribunal. I had been informed by the college that I had not paid the fees in time and that I need to pay it at the earliest.
In this ground, the Applicant makes various submissions in respect of the merits of his application. At the hearing, the Applicant did not wish to say anything further about this ground. This Tribunal cannot review the merits of the Applicant’s application.[55]
[55] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ
No arguable case of jurisdictional error arises in relation to ground three.
Ground 4
4.The time wasted in negotiating with college authorities and hefty amount asked by the college for my coming semesters resulting in delay in fee payment. To add up to my distress, I was asked to visit different campuses but never got a positive response. The tribunal member with a predetermined mind disposed without weighing and considering factual circumstances presented related to this.
The first two sentences of this ground invite the Court to consider the merits of the Applicant’s application. As to the claim that the Tribunal member had a ‘predetermined mind’, because it is a serious allegation, the Court invited the Applicant to explain what he meant by this. The Applicant was unable to answer. In the absence of any particulars or evidence in support of a finding of bias on the part of the Tribunal, there is no arguable case of jurisdictional error arises in relation to ground four.
Ground 5
5.Genuine intention to finish my studies resulted in securing a CoE from Everest College as I could have always maintained my course of study. But I was never aware about cancellation of my enrolment. The non-compliance of the condition was a result of matters outside of my control and knowledge. The Tribunal member had the benefit of viewing all submissions made when asked for with supporting evidence of communication with college but decided to dispose of the application for review without fully considering it on merits.
In reaching its decision, the Tribunal considered in its decision the Applicant’s explanation for the cancellation of his previous enrolment (including his claims that he had been unaware of his course cancellation and that his financial difficulties contributed to his inability to pay the course fees).[56] The Tribunal also considered the COEs submitted by the Applicant from Everest Institute.[57] However, the Tribunal was not satisfied that these claims showed a genuine commitment to study. This was a finding that was open to the Tribunal. When asked if there was anything further that the Applicant wanted to say in respect of this ground, the Applicant said no.
[56] CB 116 at [32].
[57] Ibid.
No arguable case of jurisdictional error arises in relation to ground five.
Ground 6
6.I do have exceptional circumstances beyond the application lodgement previously.
At the hearing, the Court asked the Applicant what he meant by “exceptional circumstances”. The Applicant was not able to provide any clarification.
In the absence of any particulars or a specific allegation of jurisdictional error, no arguable case of jurisdictional error arises in relation to ground six.
Ground 7
7.The Delegate failed to exercise its decision-making power reasonably.
This ground does not engage with the Tribunal’s decision. This Court does not have jurisdiction to review the decision of the Delegate. To the extent that this ground was directed towards the Tribunal, the Court asked the Applicant to clarify what he meant by the Tribunal not exercising power “reasonably”. The Applicant could not answer.
No arguable case of jurisdictional error arises in relation to ground seven.
Ground 8
8.The Administrative Appeals Tribunal (“Tribunal”) failed to exercise its jurisdiction by failing to consider “all aspects” of my claims.
By this ground, the Applicant alleges that the Tribunal did not consider “all aspects” of the Applicant’s claims. A failure to consider a claim or relevant evidence can constitute jurisdictional error.[58] However, the Applicant must clearly identify the relevant claims or evidence that is said to have been overlooked.
[58] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [68] per Black CJ, French and Selway JJ.
At the hearing, the Court asked the Applicant what aspects of his claim the Tribunal failed to consider. The Applicant was not able to identify any. On review of the Tribunal’s decision, it is clear that the Tribunal did consider the Applicant’s claims and evidence.
No arguable case of jurisdictional error arises in relation to ground eight.
Ground 9
9.The decision is against the weight of evidence provided to the Tribunal.
This is not a proper ground of review that is supported by any particulars.
At the hearing, the Court asked the Applicant to explain what he meant by this ground. The Court took the Applicant to the Tribunal’s decision and identified key findings made by the Tribunal. The Applicant confirmed the correctness of all the factual findings made by the Tribunal. This included that the Applicant had been in Australia since 2014, had returned to India only once, and that as of July 2019, the Applicant had not provided any evidence of academic progress or course completion since arriving in Australia.
When asked if he wanted to add anything further in support of this ground, the Applicant said no.
No arguable case of jurisdictional error arises in relation to ground nine.
Noting that none of the nine grounds of review establish an arguable case of jurisdictional error, it would not be in the interests of justice to grant an extension of time. The lack of merit in each of the grounds of review weigh heavily against granting an extension of time.
Grounds in Affidavit filed 3 September 2019 (2019 Affidavit)
In fairness to the Applicant the Court has considered the contentions raised by the Applicant in the 2019 Affidavit to discern whether grounds of review are advanced that are in addition to the grounds in the application before the Court.
Paragraphs 1 – 10 of the 2019 Affidavit largely summarised the factual and procedural background to this application. The relevant possible grounds of review contained within that affidavit are as follows:
11.I received the information on 05 June 2019 from Stott's college by email that my enrolment got cancelled. I called the college and requested them to let me remain enrolled and give me extension. Since it was a holiday period for 3 weeks, I met the college receptionist on 19 June 2019 and tried to reason with them but without much effort. I sent them my card details on 21st June 2019 asking them to deduct the fees from my account. They responded to my third email on 25th June' 19 asking me to go to the Carlton campus to discuss about my enrolment. I went to the Carlton campus and was asked to come back on 12th July 2019. I provided emails exchange to AAT member when received email from them on 5th July 2019 to comment on my enrolment whereas the AAT member did not have enough consideration to these facts.
12.AAT acknowledged that I visited my Family in India for 15 days in 2016 to attend my Brother's wedding but since 2017 I am facing visa issues which did not allow me mentally to visit my family and friends as I wasn't in right frame of mind. However, my intention was clear to visit them as soon as I have clarity on my visa, there was little weightage given to this aspect.
13.AAT acknowledged I have always maintained my enrolment in courses to study in Australia which signifies my intention was clearly to study however due to one or the other prevailing circumstances, health, funds, mental stress that I was unable to progress academically.
14.At both the occasions when sought explanation, I provided information to AA T how am I planning to execute my plans of opening a restaurant back in my home country and how important it is for me to complete the study here for execution of this plan.
15.It is one thing to refuse to accept an explanation from the applicant with regards to the Statement of Purpose (GTE) because the lack of evidence or material at a point will not be capable of changing another determinative deficiency in the applicant's evidence in the review. It's another to refrain from deciding a point, but to use unresolved doubts about it, to refuse an applicant an opportunity to cure a remediable but, if unremedied, fatal, deficiency in this case.
16.There was no necessity, for the Tribunal to make its decision based on the explanation requested at 2 instances or reject applicant's statement of purpose or GTE on account of some factual inconsistencies which can be addressed if the applicant would have given a chance to present in person over a hearing to provide further clarification on points.
At the hearing the Court asked the Applicant whether he wanted to say anything further in support of what was contained in the 2019 Affidavit. He declined to do so..
Having not addressed the 2019 Affidavit in their written submissions before the Court the Minister’s representative submitted that any grounds arising had already been rebutted.
It is immediately apparent that paragraphs 12, 13 and 14 are arguments that go to the merits of the application for a student visa. Consequently, no arguable case of jurisdictional error arises.
Paragraph 11 contends that “the AAT member did not have enough consideration of [the] facts.” Like ground one in the application no arguable case of jurisdictional error arises. It is clear that the Tribunal engaged with the Applicant’s claims and evidence. The fact that the Applicant disagrees with the resulting decision is not a ground of jurisdictional error.
Paragraph 15 is a complaint about procedural fairness. There was no unfairness in this matter. The Applicant had every fair opportunity to advance his case for a student visa.
Paragraph 16 complains about the absence of a hearing. As explained above in relation to ground one, the Applicant deprived himself of a hearing because he filed material late. The consequence of filing late was made clear to him. In any case the Tribunal consider the material that was filed by the Applicant. No arguable case of jurisdictional error arises.
CONCLUSION
As the application in this case was filed with this Court four 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 absence of a satisfactory explanation for the delay in filing the application 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.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 26 May 2025
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