Abdul Samad v Minister for Immigration and Citizenship [2025] FedCFamC2G 1673

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 10 June 2025, an application for an extension of time in which to make a substantive application (Substantive Application) seeking judicial review was dismissed, pursuant to r 13.06(1)(c) of the then applicable Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Previous Rules), for non-appearance, with costs.
2. The Substantive Application had sought review of a decision of the Administrative Appeals Tribunal (Tribunal) (as it was) concluding that it lacked jurisdiction in the matter. The applicant had sought review before the Tribunal of a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
3. On 29 July 2025, a Registrar reinstated the matter and made timetabling orders. On 6 August 2025, the Minister filed an application seeking review of this exercise of power.

1. The applicant applied for the student visa in question on 21 September 2023. On 16 April 2024, the Delegate refused to grant the applicant's student visa application.
2. On 7 May 2024, the applicant lodged an application form seeking review of the Delegate's decision with the Tribunal. On 28 May 2024, the applicant was invited by the Tribunal to comment on the validity of her application by 11 June 2024. This was in circumstances where, it was expressed, it appeared that the applicant had not paid the application fee before expiry of the time limit for lodging the application.
3. On 5 September 2024, the Tribunal found that it did not have jurisdiction in the matter.

1. The Tribunal gave the following reasons for determining that it did not have jurisdiction in the matter at [2]-[6]:
   1. The review application form was lodged with the Tribunal on 7 May 2024. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
   2. Pursuant to s 347(1) of the Act and reg 4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s 347(1)(b) and reg 4.10 and accompanied by the prescribed fee unless a determination has been made under reg 4.13(4) that the fee should be reduced based on financial hardship.
   3. The prescribed period is set out in reg 4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 7 May 2024. The fee must be paid within the prescribed period: Kirk v MIMA [1998] FCA 1174; (1998) 87 FCR 99, or if a determination has been made under reg 4.13(4), within a reasonable period after that determination: Braganza v MIMA [2001] FCA 318; (2001) 109 FCR 364.
   4. On 28 May 2024 the Tribunal wrote to the applicant inviting them to comment on its preliminary view that a valid application had not been made because the application fee had not been paid within the prescribed timeframe. The Tribunal did not receive a response to its invitation.
   5. Based on the information before it, the Tribunal considers that the prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the Tribunal finds that the application for review is not a valid application, and the Tribunal has no jurisdiction in this matter.

1. The Minister's application for review in this case was made under the Previous Rules, which required the application to be "made" within 7 days: r 21.02 of the Previous Rules. At the hearing of the matter on 29 August 2025, the parties proceeded on the basis that no extension of time was necessary. However, upon reviewing the file after the listing, it became apparent that an extension of time was potentially required. Although the matter was relisted to allow discussion of this to occur, the applicant did not attend the listing. Orders were sought by the Minister at the further listing for the filing of written material addressing the issue. Orders were made to this effect.
2. The challenged decision was made on 29 July 2025. The review application was lodged on 5 August 2025, albeit at 4.31pm. It was therefore taken to have been filed on 6 August 2025: r 2.05(4) of the Previous Rules. The application was thus lodged 1 minute out of time. Although the Minister's explanation (effectively administrative error) is not particularly satisfactory, I accept that the delay was of the most limited kind. I accept that a delay of one minute would not have relevantly prejudiced the applicant. Further, for reasons developed below, I am persuaded that the Minister's application has merit. I am therefore satisfied that an extension of time ought to be granted permitting review of the Registrar's orders.

1. Review of a Registrar's decision may be sought under s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The review is to proceed on a de novo basis: r 3.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (GFL Rules). This means, in the present case, that the Court is required to determine whether the applicant's application for an extension of time in which to seek judicial review of the Tribunal's decision ought to be reinstated.
2. The principles regarding the question of reinstatement have been considered in a number of cases, including in BQS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 13 (BQS17) at [31]-[32] (Judge Given). The power is discretionary. It requires the Court to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50]- [52] (Flick, Robertson and Lee JJ). The following matters are often considered:

(a) whether there is a reasonable explanation for non-appearance at the hearing and any delay in applying for reinstatement;

(b) any prejudice to the other party; and

(c) whether the grounds identified in the substantive application have reasonably arguable prospects of success: see BQS17 at [52] and CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15) at [4] (Mortimer J, as the Chief Justice then was).

1. There is some overlap between these principles and the principles relevant to extensions of time, which have been considered in cases such as BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15) and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 (Katoa). The Court is required "to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice": BTI15 [40] (Jagot and Halley JJ); see also Katoa at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ). Whilst the matters to which regard may be had are not expressly confined by the Migration Act 1958 (Cth) (Act), matters that may be relevant include the extent of the delay and the explanation for it, any prejudice, the impact on the applicant if time is not extended, the public interest and the merits of the substantive application: see BTI15 at [25]-[26] (Logan J) and Katoa at [40] (Gordon, Edelman, and Steward JJ).

1. Although the Minister accepted that there was no specific prejudice in the present case (beyond the public interest in finality), this is not sufficient reason (alone) for granting reinstatement of an application.
2. The Minister observed that different explanations had been provided by the applicant in her documents and to the Registrar regarding why she had not attended the listing on 10 June 2025. At the hearing of the present application, the applicant clarified that she had not attended the callover because she had provided the wrong email address in her application to the Court, which had resulted in her not seeing the listing in time.
3. I accept the Minister's submission that the applicant's explanation does not satisfactorily explain the non-appearance at the callover, nor the delay of some weeks in lodging her reinstatement application. This is because it was the applicant's responsibility to provide the correct contact details to the Court.
4. In any event, even if there were a satisfactory explanation for non-attendance and delay, the result in this matter would have been the same. This is because, for the reasons that follow, the underlying Substantive Application has no real prospect of success.

1. An additional hurdle in this proceeding is that the applicant was late in applying for judicial review of the Tribunal's decision. An extension of time would therefore be required in order for the Substantive Application to proceed.
2. The explanation for delay (based upon ignorance of process and storage issues associated with the email address she provided to the Tribunal) could not be regarded as entirely satisfactory. However, the delay was relatively short and the Minister accepted that there would be no real prejudice to him in granting the extension. Had there been merit in the Substantive Application, the extension would likely have been granted. However, for the reasons that follow, the Substantive Application has no reasonable prospect of success.
3. The grounds relied upon in the Substantive Application were stated as follows:
   1. The Tribunals is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 65 of the Migrant Act 1958 (Cth) (the Act).
   2. On 28 May 2024, the Tribunal wrote to the applicant, inviting the applicant to comment on its preliminary view that a valid application had not been made because the application fee had not been paid within the prescribed timeframe. The Tribunal did not receive a response to its invitation.
   3. Pursuant to s 347 (1) of the Act and reg 4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s 347(1)(b) and reg 4.10 and accompanied by the prescribed fee unless a determination has been made under reg 4.13(4) that the fee should be reduced based on financial hardship.
   4. The prescribed period is set out in reg 4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 7 May 2024.The fee must be paid within the prescribed period: Kirk v MIMA [1998] FCA 1174; (1998) 87 FCR 99, or if a determination has been made under reg 4.13(4), within a reasonable period after that determination: Braganza v MIMA [2001] FCA 318; (2001) 109 FCR 364.
   5. The applicant misunderstood by the requirements about the fees, this could potentially offer grounds for the tribunal to reconsider the matter, depending on the tribunal's rules and the specifics of the misunderstanding. However, based on the tribunal's statement, it appears that the application is currently invalid due to the non-payment of the prescribed fee providing responded to the Tribunal's correspondence.
   6. However due to misunderstanding the applicant failure to provide more details and reason why not responding the comment on its preliminary application fees.
   7. Based on the information before, Tribunal considered the prescribed fees has not been paid and no determination has been made (or requested) that the fee should be reduced reduced. In these circumstances, the Tribunal finds that the application for review is not a valid application, and the Tribunal has no jurisdiction in this matter
   8. The Tribunal made assumption about the Applicant without evidence or proof.
   9. The Tribunal acted unreasonably, unfairly, and irrationally in dismissing the review.
   10. Based on the Applicant financial and hardship situation, the Applicant appeal for the court process fees since she currently unable to provide any financial support due unstable working condition.

1. The grounds took issue with the Tribunal's finding that it lacked jurisdiction, contending that it "made assumption[s]" without evidence, or was unreasonable, unfair or irrational. This was in circumstances where, the applicant submitted, she had misunderstood the requirements regarding fees.
2. The problem for the applicant is that, on any legally permissible view, the Tribunal did (and does) lack jurisdiction in the matter. In these circumstances, even if there were some defect in the Tribunal's reasoning or approach (which is not apparent), then this could not have made a difference to the outcome. The Tribunal has (and had) no ability to give itself jurisdiction on a discretionary basis, by reference to the applicant's misunderstanding or otherwise. Remittal of the matter would therefore be futile. Relief would not be granted in these circumstances: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [27]- [29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
3. In order for the Tribunal to have had jurisdiction, an application in accordance with the relevant legislation had to be made to it within time. The relevant time limit was 21 days, with the result that the application in this case was required to have been validly made by 16 April 2024: s 347(1)(b) of the Act and reg 4.10(1)(a) of the Migration Regulations 1994 (Cth) (Regulations). An application to the Tribunal was required to have been "accompanied by the prescribed fee": s 347(1)(c) of the Act. This was provided for in reg 4.13 of the Regulations, which relevantly stated:

4.13 Tribunal review - fees and waiver

(1) Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $3,000.

Note: The fee in subregulation (1) is subject to increase under regulation 4.13A...

(4) If the Registrar of the Tribunal is satisfied that the payment of the fee mentioned in subregulation (1) has caused, or is likely to cause, severe financial hardship to the review applicant, the Registrar may determine that the fee payable is 50% of the amount mentioned in subregulation (1).

1. There is authority to the effect that, where an applicant relevantly applies for waiver of the prescribed fee within the prescribed period, then "the application for review may be entertained; provided that the fee is either eventually waived, or paid within a reasonable time after the application for waiver is rejected": Braganza v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 318; (2001) 109 FCR 364 (Braganza) at [51] (Wilcox, Weinberg and Stone JJ). However, Braganza was decided when the Regulations provided for full waiver of fees, rather than only 50% of fees and, in any event, no waiver application was made by the applicant within time in the present case. Whilst some elasticity may inhabit the words "accompanied by", that "elasticity is with respect to payment of the fee within the prescribed period": Dahi v Minister for Home Affairs [2019] FCA 784 at [23] (Davies J) (Dahi) and BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 20; (2023) 296 FCR 63 at [50]- [54] (Thawley and Kennett JJ).
2. I accept, as was observed by the Minister, that the applicant may not have received prompts in the present case regarding payment of the fees. Similarly to in Dahi, this appears to have occurred because the applicant incorrectly indicated that she was seeking review of a decision relating to a protection visa. However, there does not appear to have been any statutory obligation upon the Tribunal to offer prompts. Even if there were some defect in the Tribunal's approach regarding prompts, this would be incapable of bestowing jurisdiction upon the Tribunal.
3. It follows that the applicant has no arguable case for setting aside the Tribunal's decision. As Mortimer J (as the Chief Justice then was) observed in CAL15 at [4], it "is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case". Allowing reinstatement would only increase the costs and time associated with a process that is unable to result in a favourable outcome for the applicant.
4. On the basis of the above, I accept the Minister's submission that the application in question ought not to be reinstated.

1. It follows from the above that the application for review of the Registrar's exercise of powers on 29 July 2025 succeeds. Orders 2 to 5 of the orders made on 29 July 2025 will be set aside. In consequence, the application filed by the applicant on 9 July 2025 seeking to set aside the orders made on 10 June 2025 will be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.