Bista v Minister for Immigration and Citizenship [2026] FedCFamC2G 346

1. Before this Court is an application filed on 4 June 2025 under s 477(2) of the Migration Act 1958 (Cth) (the Migration Act).
2. The Administrative Review Tribunal (Tribunal) affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the delegate) dated 25 August 2023, to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (Student 500 Visa).
3. The Tribunal initially dismissed the matter on 17 March 2025 (the Dismissal Decision) and then on 5 May 2025 made a decision to confirm the dismissal (the Confirmation Decision).
4. The applicant seeks an extension of time in which to lodge an application for judicial review of the Dismissal Decision and seeks judicial review of the Confirmation Decision.
5. A hearing of this matter took place at the Sydney Registry of the Court on 18 September 2025. The applicant appeared as a litigant in person. Mr Greg Johnson of Counsel appeared for the first respondent instructed by MinterEllison. As a question arose as to whether the Court has jurisdiction to review dismissal decisions, an adjournment was granted for further submissions to be made, and judgment was reserved upon receipt of final submissions.
6. I have considered first whether the Court has jurisdiction over the Dismissal Decision made under s 100 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). I have then considered the extension of time application in respect of the Dismissal Decision, and I have considered whether there was any jurisdictional error in the Confirmation Decision.
7. I am satisfied that the Court has jurisdiction, and the applications should be dismissed.

1. The applicant is a citizen of Nepal (Court Book (CB) 69).
2. On 29 June 2023, he applied to the Department of Home Affairs (the Department) for the Student 500 visa (CB 23-75). The application was accompanied by:
   • an undated 'Genuine Temporary Entrant' Statement comprising 4 pages (CB 38- 41);
   • Confirmation of Enrolments (CoE) (CB 71-72); and
   • various financial and educational documents (CB 50-56 and 73-75).
3. On 25 August 2023, the delegate refused to grant the applicant the Student 500 visa (CB 99-102), finding that the applicant did not meet cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations).
4. On 13 September 2023, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the delegate's decision (CB 103-110).
5. The applicant appointed a registered migration agent, Mr Ali, as his authorised recipient and representative and provided his email address as the nominated email address for correspondence (CB 107).
6. On 13 September 2023, the AAT acknowledged the application and invited the applicant to provide material and written arguments for the AAT to consider (CB 118-119). The applicant did not respond.
7. In October 2024, the AAT transitioned to the Administrative Review Tribunal (Tribunal).
8. On 11 November 2024, the Tribunal emailed the applicant at his nominated email address requesting further information as follows (Request for Student Visa Information Email):

...it is a requirement of the visa for the applicant to be:

a genuine applicant for entry and stay as a student.

Accordingly, the applicant will need to provide sufficient information to satisfy us that they meet both of these visa requirements and they are now invited to give, in writing, all relevant information about the course(s) of study they are undertaking and their entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information Form

We would appreciate it if the applicant could provide a response within 14 days.

1. In the email dated 11 November 2024, the Tribunal also provided a link to Ministerial Direction No.108 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications'.
2. The applicant did not respond to the Request for Student Visa Information Email.
3. On 19 December 2024, pursuant to s 79(1) of the ART Act, the Tribunal issued a Tribunal Direction (the Direction) (CB 132-133). The Tribunal emailed the Tribunal Direction to the email address of the applicant's migration agent as nominated by the applicant in his application for review to the Tribunal. The Tribunal Direction directed the applicant to:

Complete a Student Visa Information form and provide your completed form to the

Tribunal within 35 days of the date of this Direction.

1. The direction included instructions on how to access and lodge the Student Visa Information form (CB 132-133).
2. The applicant did not submit any further documents.
3. On 17 March 2025, the Tribunal dismissed the application (Dismissal Decision) owing to the applicant's failure to comply with the Tribunal Direction within 35 days (CB 138).
4. On 17 March 2025, the Tribunal notified the applicant of the Dismissal Decision and his entitlement to apply for reinstatement by 14 April 2025 (CB 135-137). In the notification, which was emailed to the applicant's nominated email address, the Tribunal stated the following (CB 136):

On 19 December 2024 we notified you that the Tribunal had given a direction requiring

you to provide certain information and/or documents to the Tribunal within 35 days of

the date of the direction. As you have not complied with the Tribunal's direction, we

have decided to dismiss your application for review.

1. On 5 May 2025, the Tribunal confirmed the dismissal (CB 146).
2. On 8 May 2025, the Tribunal notified the applicant of the Confirmation Decision by email (CB 141-142).

1. On 17 March 2025, a Registrar of the Tribunal dismissed the application for review under s 100 of the ART Act.
2. The Tribunal recorded that on 19 December 2024 the Tribunal by order under s 79(1) of the ART Act gave a direction requiring the applicant to complete a 'Student Visa Information Form' and provide the completed form to the Tribunal within 35 days of the direction (Dismissal Decision [2]). The Tribunal noted that the order required the applicant to give information or documents to the Tribunal for the purposes of the proceeding in accordance with s 79(2)(a) of the ART Act.
3. The Tribunal recorded that it had emailed the Request for Student Visa Information Email to the email address as nominated by the applicant and received no response from the applicant (Dismissal Decision [3]). The Tribunal noted that there had been no other contact with the applicant since lodgement of the application (Dismissal Decision [5]).
4. The Tribunal recorded that it had previously on 11 November 2024 sent an email to the nominated email address of the authorised recipient requesting the same information by completing the form and returning it within 14 days, and no response had been received (Dismissal Decision [4]).
5. The Tribunal recorded that there had been no contact from either the applicant or the applicant's authorised representative since the lodging of the application for review. This included no response being received by the Tribunal to the Tribunal Direction and no completed Request for Student Visa Information being returned to the Tribunal (Dismissal Decision [5-6]).
6. The Tribunal considered that the applicant had been afforded a reasonable period of time to comply with the Tribunal Direction and found that the applicant was in non-compliance with the Tribunal Direction as at the time of its Decision (Dismissal Decision [7]).
7. Accordingly, the Tribunal considered it reasonable in the circumstances to dismiss the application for review pursuant to s 100 of the ART Act (Dismissal Decision [8] and [9]).

1. The Tribunal noted that on 15 March 2025 it had dismissed the application under s 100 of the ART Act as the applicant had failed within a reasonable time to comply with an order of the Tribunal under s 79(1) of the ART Act (Confirmation Decision [2]).
2. The Tribunal recorded that the applicant had been notified of the Dismissal Decision and been given a copy of a written statement setting out the decision, in accordance with s 368B(5) of the Migration Act (Confirmation Decision [3]).
3. The Tribunal recorded that the applicant had been advised that reinstatement of the application could be sought within 28 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 28 days would result in confirmation of the Dismissal Decision (Confirmation Decision [3]).
4. The Tribunal found that as the applicant did not apply for reinstatement within the 28-day period, the Tribunal was required to confirm the decision to dismiss the application. The decision under review was taken to be affirmed (Confirmation Decision [4]-[5]).

1. The applicant applied to this Court for judicial review in an application filed on 4 June 2025. The applicant sought judicial review of the Dismissal Decision dated 17 March 2025. He sought an extension of time in which to file his application for judicial review as the application was not made within 35 days of the date of the Dismissal Decision: s 477(1) of the Migration Act.
2. The applicant filed an affidavit deposed on 2 June 2025 attaching a copy of the Dismissal Decision and containing a number of statements which have been treated by this Court as submissions.
3. By orders of the Court on 18 August 2025, the applicant was ordered to file and serve an amended application, any affidavit evidence and submissions by 31 August 2025.
4. No further documents were filed by the applicant.
5. The applicant's grounds for judicial review are set out in the application filed on 4 June 2025.
6. On 18 September 2025 the parties appeared before this Court to hear the extension of time application. The applicant appeared as a litigant in person. Mr Greg Johnson of Counsel instructed by MinterEllison appeared for the Minister.
7. The following documents were before the Court - the initiating application for judicial review, the supporting affidavit of the applicant filed on 4 June 2025, a Court Book (numbering 156 pages and marked as Exhibit 1R) filed on 11 July 2025, written submissions of Counsel for the Minister dated 16 September 2025, supplementary submissions of the Minister filed 29 October 2025 and two affidavits of Jonathan Djasmeini dated 15 September 2025 and 17 September 2025, which were read in Court.
8. The applicant applied to the Court for review of the Dismissal Decision but also referred in his application to the Confirmation Decision. At the hearing before me, after discussion about the jurisdictional issues (addressed in later paragraphs of this judgment), the applicant sought leave to amend the application, to encompass judicial review of both the Dismissal Decision and the Confirmation Dismissal. I granted leave, pursuant to rr 8.09 and 1.10 of the Federal Circuit Court and Family Court of Australia (Division Two) (General Federal Law) Rules 2025 (Cth) (Rules), for the application for review to be amended to include both decisions.

1. A court has an intrinsic duty to assist unrepresented litigants: Dietrich v R [1992] HCA 57; (1992) 177 CLR 292; Hamod v New South Wales [2011] NSWCA 375 per Beazley JA (Giles and Whealy JJA agreeing). At [309] to [316] in Hamod, Beazley JA outlined the relevant principles in ensuring there is the right balance between impartiality and assisting litigants in person (citations omitted):
   • The duty reposes in the individual judicial officer hearing a case.
   • The touchstone is that of fairness.
   • The duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented.
   • Trial judges should ensure that litigants do not remain ignorant of fundamental procedures which if invoked may prove advantageous.
   • The court has an obligation to ensure a fair trial for all parties such that the impartial function of the judge should be preserved, and no advice should be given as to how rights should be exercised.
   • The unrepresented litigant should have sufficient information about the practices and procedure of the court so far as reasonably practicable for the purpose of ensuring a fair trial.
2. These principles apply in civil cases: Mortimer J in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (MZAIB) at [70] - [75]. Mortimer J observed that what a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case. She endorsed the approach of Smith J in Panagopoulos v Southern Healthcare Network (unreported, Sup Ct, Vic, 15 September 1997) at [9] that while judges should maintain neutrality, the boundaries of legitimate intervention are flexible.
3. In the case before me I confirmed that the applicant had a copy of the Court Book and the Minister's submissions. I outlined the role and processes of the Court and explained that jurisdictional error must be demonstrated if the applicant were to succeed in his application. I explained that jurisdictional error is a kind of serious legal error and outlined some common categories, noting that these categories were not exhaustive. I also explained the well-established principle expressed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 - that a court cannot engage in reviewing the merits of the decision.
4. I also outlined to the applicant the relevant factors courts usually take into consideration in extension of time applications - the reason for delay, prejudice to parties and prospects of success, and explained that the Court must be satisfied that an extension of time is necessary in the interests of the administration of justice.
5. The applicant was asked if he understood and he said that he did.

JURISDICTION IN RESPECT OF REVIEW OF MATTERS UNDER S 100 OF THE ART ACT

1. A threshold question to be determined (see New South Wales v Kable (2013) 252 CLR 118 at [31]) is whether this Court has jurisdiction to entertain the application for judicial review of the Dismissal Decision.
2. The jurisdiction of the Federal Circuit and Family Court of Australia is referred to in s 476(1) of the Migration Act. Section 476(1) of the Migration Act states that 'subject to this section' this Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. The High Court has original jurisdiction under s 75(v) of the Constitution over all matters in which a writ or mandamus or prohibition or injunction is sought against an officer of the Commonwealth.
3. 'Migration decisions' (referred to in s 476(1) of the Migration Act) is defined in s 5(1) to include privative clause decisions, which are defined in s 474(2) to include decisions of: 'an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act, or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)' (emphasis added).
4. While confirmation of dismissal cases, such as the Confirmation Decision in the matter before me, are clearly privative clause decisions as they are clearly made 'under this Act' (s 368C(5) of the Migration Act), s 100 is a provision of the ART Act, such that the Dismissal Decision, made pursuant to s 100 is not, on the face of it, 'under this Act'.
5. Further, a decision under s 100 of the ART Act does not meet any of the other categorisations of a 'migration decision' in s 5 of the Migration Act, in respect of which this Court has original jurisdiction under s 476(1). Section 5 of the Migration Act does include 'an ART migration decision' but these types of decisions are further defined in s 474A of the Migration Act (and do not include decisions under s 100 of the ART Act),
6. I note that in ADO25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1954 (ADO25), a similar question arose as to whether the Court had jurisdiction (in that case in relation to s 99 of the ART Act). Judge Zipser in ADO25 noted that the applicant by filing in the Court, assumed the Court had jurisdiction (at [39]). The first respondent in that case agreed and it was noted that review of the confirmation decision required the Court to also consider the validity of the dismissal decision at [39].
7. I have had the benefit of submissions on the issue of jurisdiction filed by Mr Johnson, Counsel for the Minister on 29 October 2025. Mr Johnson submitted at [4], that the better view is that the Court does have jurisdiction in relation to a decision under s 100 of the ART Act, either directly under s 476(1) of the Migration Act or as a collateral challenge.
8. Mr Johnson submitted that the Court has original jurisdiction under s 476(1) of the Migration Act. Essentially the argument is as follows:
   • Section 476(1) of the Migration Act refers to jurisdiction in relation to 'migration decisions'.
   • 'Migration decisions' is defined to include 'privative clause decisions' which are defined in s 474(2) to be decisions made under the Migration Act.
   • 'Decision' under s 474 of the Migration Act includes various acts and refusals set out in s 474(3)(a) to (j), including at s 474(3)(i):

a decision on review of a decision, irrespective of whether the decision on review is taken under this Act.. or under another Act.

• It follows that 'privative clause decisions' can include decisions on review under another Act.
• Dismissal decisions under s 100 of the ART Act are decisions on review even though they are not decisions on the merits.

1. I accept the arguments put forth by Mr Johnson. I can see no reason why the jurisdiction should be limited to exclude decisions on review made under another Act that is not the Migration Act, when s 474(3)(i) expressly refers to other Acts. Section 474 of the Migration Act is a section about privative clause decisions, even though s 474(3) refers to 'decisions' rather than 'privative clause decisions'. The section is headed 'Decisions under Act are final' and then immediately goes on to explain the effect of a privative clause decision' in s 474(1) and define it in s 474(2). It follows that when, in s 474(3) the section provides 'a reference in this section to a decision includes a reference to ...', the use of the word 'decision' is in fact referring to privative clause decisions. Even though s 474(2) refers to decisions under the Migration Act, s 474(3) broadens the scope to include decisions on review of a decision, irrespective of whether the decision on review is taken under the Migration Act or under another Act, in this case the ART Act.
2. This view is consistent with Lesianawai v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 896 (Lesianawai) in which McKerracher J considered s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Section 42A(4) of the AAT Act provided for dismissal of proceedings in certain circumstances. McKerracher J found that the decision to dismiss was a privative clause decision as defined in s 474(2) of the Migration Act, and therefore a migration decision. There was no analysis of whether the court had jurisdiction generally over this kind of decision. However, the court implicitly accepted that there was jurisdiction, finding that the s 42A(4) decision 'appeared' to be a "migration decision" because of s 474(3)(i): at Lesianawai [12].
3. I am satisfied for the above reasons that this Court has jurisdiction to review dismissal decisions under s 100 of the ART Act. As I have found that the Court has jurisdiction, I have not considered the issue of collateral challenge.

CONSIDERATION OF THE EXTENSION OF TIME APPLICATION

1. Section 477 of the Migration Act provides the time limit which applies to applications for judicial review of Tribunal decisions in respect of which this Court has jurisdiction and the basis upon which it may be extended. At the time of the Dismissal Decision, the provision relevantly provided:

s 477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)

(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.

1. The legislation does not prescribe what factors a court should consider to determine whether extension of time is necessary in the interests of the administration of justice. The Court usually takes into consideration principles such as the length of the delay, whether there is an adequate explanation for the delay, any prejudice to the Minister and the merits of the proposed substantive application: see, for example: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 (SZRIQ) at [46]-[48].
2. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 (Katoa) the majority of the High Court held at [12] that:

(a) the focus in considering whether to grant the extension of time is not on the interests of the applicant, but on the broader interests of the administration of justice; and

(b) the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

Lodgement of application for judicial review of the Dismissal Decision

1. As the Dismissal Decision was made by the Tribunal on 17 March 2025, the time to apply for judicial review expired on 22 April 2025 (35 days from the Dismissal Decision: s 477(1) of the Migration Act).
2. The application for review of the Dismissal Decision was not lodged by the applicant until 4 June 2025 which was 43 days after the prescribed time as set out in s 477(1) of the Migration Act.
3. The applicant has applied for extension of time pursuant to s 477(2) of the Migration Act. The Court must consider the two limbs of s 477(2) of the Migration Act.

1. The first limb in s 477(2)(a) of the Migration Act is whether an application has been made to the Court in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order extending time.
2. The applicant made an application in writing on 4 June 2025 seeking judicial review. The applicant hatched both the boxes set out in the pro forma application 'did not request an extension of time' and 'request an extension of time', however under a heading 'Grounds of application for extension of time', the applicant wrote:

1. I came to know about the decision of ART on 8 May 2025. This was the date on which ART informed me via an email to my representative.

2. 35 days after 8 May 2025 will end on 12 June 2025.

3. I made initial application to the court on 02 June 2025.

4. I realised only after the court rejected my application and commented about considering the "out of time application option" that the actual date of decision is 17 March 2025. This is very unfortunate that I was informed by ART 52 days after 17 March 2025.

5. I believe that I was at disadvantage because I was informed 52 days after the decision was by ART.

6. I request the Honourable Court to accept my application and proceed my case according to the court's procedures.

1. The applicant is a litigant in person. Although the applicant has not formally requested an extension of time or clearly articulated why the extension of time is necessary in the interests of the administration of justice, he has set out the grounds for an extension, which can be taken to be the grounds he believes the extension is necessary in the interests of the administration of justice. For these reasons, I have taken the application for judicial review to be an application to the Court specifying why the applicant considers it necessary in the interests of the administration of justice to make an order extending time. The Court has dispensed with the need for an application in the approved form pursuant to r 1.10 of the Rules. The Minister did not oppose the Court accepting the application for judicial review as an application for an extension of time pursuant to s 477(2)(a) of the Migration Act.
2. I am satisfied that s 477(2)(a) of the Migration Act is met, as an application has been made to the Court in writing specifying why the applicant considers it necessary in the interests of the administration of justice to make the order extending time.

Necessary in the interests of the administration of justice

1. The second limb of s 477(2)(b) provides that the Court can grant an extension of time for the filing of an application if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
2. The High Court observed in Katoa at [11], that the text of equivalent provisions (relevant to the Federal Court), reveals a legislative intention to restrict exercise of the jurisdiction by placing a 35 day limit on applications, and ameliorating injustice that might result by allowing that time to be extended only where a judge has reached a state of satisfaction that it is in the interest of administration of justice to extend (Katoa per Kiefel CJ, Gageler, Keane and Gleeson JJ). As mentioned earlier, the Court also stated that the Court's power to extend time is not focused on the interests of the applicant, but rather on the broader interests of the administration of justice (Katoa at [12]).
3. I have considered whether it is necessary in the interests of administration of justice to extend the time for the application for judicial review, by reference to the extent of the delay and reason for it, consideration of prejudice to the first respondent and a consideration of the merits of the substantive application: SZRIQ at [46]-[48].

The extent of the delay and explanation for it

1. Section 477(1) of the Migration Act requires that an application to this Court be made within 35 days of the date of the decision by the Tribunal. The Tribunal Decision was dated 17 March 2025 and therefore the application for review was required to be made by 22 April 2025. The applicant lodged the application for review on 4 June 2025, a period of 43 days after the prescribed time.
2. This is not a very minor delay, but it is also not significant.
3. The applicant submitted as an explanation for the delay that he did not receive notice of the Dismissal Decision until 8 May 2025.
4. I am not satisfied that this explanation is satisfactory. The evidence demonstrates that the Tribunal sent the applicant notice of the Dismissal Decision on 17 March 2025 (CB 134-135).
5. I have however taken into consideration the fact that it would have been unusual for the applicant to seek judicial review of the Dismissal Decision within time, given that he had a right to seek reinstatement, which would have been an easier and quicker way of getting his matter heard. This extension of time application has only arisen because the applicant did not seek reinstatement and is now seeking review of the Confirmation Decision as well as the Dismissal Decision, so in a sense, the discussion about delay is somewhat artificial.
6. I have ascribed some, but not significant weight to the delay and the unsatisfactory reason provided.

Any prejudice to the respondent if an extension were granted

1. The Minister confirmed that there was no particular prejudice to the Minister were the extension of time to be granted. While there is always some general prejudice as there is a benefit in finalisation of matters, this factor is considered neutrally.

1. In considering whether a proposed appeal has merit, a court will usually do so at a 'reasonably impressionistic level' by way of assessing whether the proposed grounds are 'arguable', 'reasonably arguable' or 'sufficiently arguable' to warrant the grant of extension of time: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP) at [62]-[63], and approved by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110.
2. In his application, the applicant relies on the following six grounds of review (reproduced without alteration):

1. The Tribunal did not communicate the matter to me.

4. The Tribunal failed to conduct a hearing despite of the fact that I asked the tribunal to do not give any decision without conducting a hearing.

5. The Tribunal Failed to truly recognise the merits of the application.

6. I request the honourable Court to set aside the decision and instruct the Tribunal to deal the matter according to the applicable law..

1. As the applicant is a litigant in person, I have considered the grounds broadly, in accordance with principles in MZAIB at [100].
2. After considering each of the grounds, I have not identified any jurisdictional error for the reasons set out below.

1. I have considered grounds one and two together as they are inter-related.
2. The first ground specified by the applicant was as follows:

1. The second ground contended by the applicant was as follows:

1. At the hearing the applicant clarified that in this ground he contended that the Tribunal did not tell him about the Dismissal Decision in March 2025 and did not give him time to respond to it. He claimed that he was only told about the Dismissal Decision on 8 May 2025 (Tp 8.44-46).
2. These grounds are not established as the Tribunal documents found in the Court Book reveal that:
   • On 17 March 2025, the Tribunal dismissed the application (Dismissal Decision) owing to the applicant's failure to comply with the Tribunal Direction within 35 days (CB 138).
   • On 17 March 2025, the Tribunal notified the applicant of the dismissal and his entitlement to apply for reinstatement by 14 April 2025 (CB 134-137).
   • The email notifying the applicant of the dismissal was sent to the email address of the applicant's migration agent as nominated in his application (CB 107 and 108).
   • The notification letter stated that:

You may apply to us, in writing, for reinstatement of the application by 14 April 2025.

1. Under s 379G(1) of the Migration Act, if the Tribunal gives a document to the representative the Tribunal is taken to have given the document to the applicant.
2. I am satisfied based on this evidence that the applicant was notified of the Dismissal Decision and given time to apply for reinstatement.
3. The Tribunal Decision is not attended by jurisdictional error by failure to afford procedural fairness in the ways specified in Grounds 1 and 2.

1. The third ground specified by the applicant was as follows:

1. The applicant has not particularised this claim. I have considered whether the Tribunal complied with the relevant provisions under the ART Act.
2. Interpreting this question broadly, as the applicant is a litigant in person, the questions for consideration are:
   • Whether the Tribunal was correct to find that the Direction was an order under s 79(1) of the ART Act.
   • Whether the Tribunal complied with the legislative provisions in notifying the applicant of the order.
   • Whether the Tribunal complied with the statutory framework under s 100 of the ART Act and whether the decision to dismiss was reasonable.

(1) The Tribunal may, by order, give directions in relation to the procedure to be followed for a proceeding in the Tribunal.

(a) require a party to the proceeding to give information or documents to the Tribunal or another party to the proceeding for the purposes of the proceeding;

1. 'Order' is not defined but it has a generally accepted meaning under the law, which is that it is a mandatory legal requirement communicated to a party.
2. In my view the Direction dated 19 December 2024 was clearly an order under s 79 of the ART Act, for the following reasons:
   • The Direction referred to the relevant provision (CB 132):

By order under section 79 of the Administrative Review Tribunal Act 2024...

• The letter to the applicant dated 19 December 2024 which accompanied the Direction reflected the language in s 79, stating (CB 130):

The Tribunal has, by order, given a direction about the procedure to be followed in your review. The Tribunal's direction is enclosed...

• The Direction required the applicant to complete a form and provide information which accorded with the requirement in s 79(2) of the ART Act 'to give information or documents to the Tribunal'.
• In the Direction, under the hearing 'Notes to Direction', the Tribunal notified the applicant of the consequences of not complying with the order (referring to the process in s 100 of the ART Act).

1. In short, the Direction used language reflecting s 79 of the ART Act and identified that it was an order under that provision. I am satisfied that the Direction dated 19 December 2024 was an order under s 79(1) of the ART Act.

Did the Tribunal correctly notify the applicant of the Direction?

1. Section 374(2) of the Migration Act provides that if the Tribunal gives a direction under s 79(1) of the ART Act:

(a) the direction must be given to the applicant in writing; and

(b) the ART must give the direction to the applicant:

(i) except where subparagraph (ii) applies - by one of the methods specified in section 379A; or

(ii) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person

1. The Tribunal sent the Direction to the applicant's representative in writing at the nominated email address (CB 129). Email is a method prescribed in s 379A of the Migration Act. The applicant had appointed a representative in his application for review, therefore the Tribunal was required to give the representative, instead of the applicant, any document that it would have given to the applicant: s 379G (1) of the Migration Act.
2. I am satisfied therefore that the notification of the order under s 79(1) of the ART Act was provided to the applicant in writing in accordance with s 347(2)(a) of the Migration Act by one of the methods in s 379A - (ss 374(2)(b)(i), 379G and 379A(5)) of the Migration Act.

Did the Tribunal comply with s 100(b) of the ART Act and was the decision to dismiss was reasonable?

The Tribunal may dismiss an application made to the Tribunal if the applicant fails to do either of the following within a reasonable time:

(b) comply with this Act or an order of the Tribunal in relation to the proceeding in relation to the application.

1. On 17 March 2025, a Registrar of the Tribunal dismissed the application for review under s 100 of the ART Act.
2. The Tribunal recorded that on 19 December 2024 the Tribunal by order under s 79(1) of the ART Act gave a direction requiring the applicant to complete a "Student Visa Information Form" and provide the completed form to the Tribunal within 35 days of the direction (Dismissal Decision [2]). The Tribunal noted that the order required the applicant to give information or documents to the Tribunal for the purposes of the proceeding in accordance with s 79(2)(a) of the ART Act.
3. The Tribunal recorded that no information was provided within 35 days (Dismissal Decision [6]).
4. The Tribunal therefore dismissed the application (Dismissal Decision [9]).
5. Section 100 of the ART Act permits the Tribunal to dismiss an application where an applicant has failed to comply with an order within a reasonable time.
6. As s 100 of the ART Act is a discretionary power, it must be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) (Hayne, Kiefel and Bell JJ). In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW), Nettle and Gordon JJ observed at [80]:

Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker.

1. The test of unreasonableness must be 'necessarily stringent': SZVFW per Kiefel CJ at [11].
2. The question of whether a statutory power is exercised within the bounds of reasonableness means that it must be 'beyond the scope of the authority conferred by the power': SZVFW, per Gageler J at [53].
3. Discretionary powers must be exercised according to the 'rules of reason' and the 'canons of rationality', and 'decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power': see Li per French CJ at [24]- [26]. There is an area of 'decisional freedom' within which reasonable minds may reach different conclusions about the correct or preferable decision: Li per French CJ at [28], per Hayne, Kiefel and Bell JJ at [66]. Such decisions will be within the bounds of legal reasonableness, that is, they will 'fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law': Li per Gageler J at [105], citing Dunsmuir v New Brunswick [2008] 1 SCR 190 at [220-221].
4. In the case before me, given the high bar for demonstrating legal unreasonableness, and the decisional freedom within the confines of the specific statutory powers, I am satisfied that the exercise of the power to dismiss was reasonable. My reasons are set out below.
5. Firstly, the Tribunal recorded that it had, prior to the issue of the Order, on 11 November 2024, sent an email to the nominated email address of the authorised recipient requesting the same information as requested in the Order and no response had been received (Dismissal Decision [4]). On 11 November 2024 the Tribunal sent the applicant's representative an email (CB 126) stating:

... the applicant will need to provide sufficient information to satisfy us that they meet both of these visa requirements and they are now invited to give, in writing, all relevant information about the course(s) of study they are undertaking and their entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information Form which the applicant can print by clicking this link: Request for Student Visa Information. The information requested may be given by printing, completing and returning the form to us.

If the applicant is unable to access the Request for Student Visa Information form by clicking on the link above, please contact us as soon as possible.

1. The email sent by the Tribunal on 11 November 2024 indicates that the applicant had been given an extra opportunity to provide the evidence sought in the Order, such that procedural fairness was afforded.
2. Secondly, the Tribunal correctly notified the applicant of the Order. The Tribunal recorded that it had emailed the address nominated by the applicant and received no response from the applicant (Dismissal Decision [4]). The applicant had appointed a registered migration agent, Mr Ali, as his authorised recipient and representative and provided his email address as the nominated email address for correspondence (CB 107).
3. Thirdly, the Tribunal recorded that there had been a lack of engagement with the applicant (the Tribunal noted that there had been no other contact with the applicant since lodgement of the application) (Dismissal Decision [5]).
4. Fourthly, the Tribunal considered that the applicant had been afforded a reasonable period of time to comply with the Tribunal Direction (Dismissal Decision [8]). This consideration was consistent with the findings of Wigney J in Charara v Commissioner of Taxation [2016] FCA 451; (2016) 160 ALD 57 (Charara) at [78] that the Tribunal must consider and determine whether a reasonable time has elapsed since the relevant failure. In that decision, Wigney J considered s 42A(5) of the former AAT Act, which provided:

If an applicant for a review of a decision fails within a reasonable time:

(b) to comply with a direction by the Tribunal in relation to the application;

the Tribunal may dismiss the application without proceeding to review the decision.

The discretionary power in s 42A(5)(b) of the AAT Act is only enlivened if the applicant fails "within a reasonable time" to comply with the direction. Thus, before the Tribunal exercises the discretion, it must consider and determine not only whether there has been a failure to comply with the direction; it must also consider and determine whether a reasonable time has elapsed since the relevant failure. An omission to do so would constitute a misapplication of s 42A(5).

1. In this case, the Tribunal specifically turned its mind to the question of whether a reasonable time had been afforded, consistent with the principles in Charara.
2. Fifthly, in the Notes to the Direction on 19 December 2024 the Tribunal explained the consequences of non-compliance to the applicant (CB 133):

It is important you comply with the Tribunal's direction by the date specified. If you don't, the Tribunal may:

a. dismiss your application for review without further consideration of the application or the information before us [with a reference to s 100], or

b. make a decision on the review without holding a hearing [with a reference to s 106].

1. Sixthly, in the order dated 19 December 2024 the Tribunal also offered the opportunity to apply for extension of time to respond (CB 130):

If you are unable to comply a due date or any other aspect of the tribunal's direction, you may ask the tribunal for an extension of time to comply or for a variation of the direction.

1. Finally, the Tribunal found that the applicant was in non-compliance with the Tribunal Direction at the time of its Decision (Dismissal Decision [7]). Section 100 provides that the Tribunal may dismiss an applicant if the applicant fails to comply with an order within a reasonable time. In the Dismissal Decision, the Tribunal observed that it had by order given a direction for the applicant to complete the form within 35 days of the date of the order (Dismissal Decision [2]). The applicant was given 35 days to comply with the order and did not do so (CB 132).
2. The Tribunal notified the applicant of the right of reinstatement in the letter of notification of the Dismissal Decision (CB 136).
3. It is relevant, although not determinative, that the applicant had the assistance of a registered migration agent. It is reasonable to assume that an agent would have explained these provisions to the applicants and noted the relevant timeframes.
4. In EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [22], Justice Lee turned his mind to the question of whether a decision to dismiss was reasonable and found that in the circumstances of that case, it 'was a course plainly within the range of possible acceptable outcomes that are defensible in respect of the circumstances of this case'. Similarly in this case, dismissal was clearly within the range of possible acceptable outcomes.
5. I accept that in these circumstances, where procedural fairness had been afforded (Guse v Comcare [1997] FCA 140; (1997) 49 ALD 288 (Guse) per Burchett J at [291]) the Tribunal was not bound to conduct a hearing and consider the merits of the application: Berry v Commissioner of Taxation [2015] FCA 1244; (2015) 149 ALD 270 (Berry) per Davies J at [37]. In Berry, no legal error was demonstrated in the Tribunal's decision to dismiss pursuant to s 42A(5) of the AAT Act which, as referred to earlier in this judgment, is in similar terms to s 100 of the ART Act. His Honour Justice Davies noted that the outcome was 'specifically provided for by the legislation' and was not legally unreasonable Berry at [37]. His Honour cited Burchett J in Guse at [291] who observed that the provision was 'plainly a valuable discretionary power'. His Honour said that the power summarily aids the Tribunal in fulfilling the objective in s 2A of the AAT Act at Berry [37]. His Honour Justice Davies also considered the comments in Guse that the provision should be used 'sparingly', noting that the real question was whether there was an evident and intelligible justification for the exercise of the power Berry at [39].
6. Similarly, in the ART Act, s 100 is intended to apply where there is non-compliance with an order, without the seeking of further information or providing further opportunities to present evidence and this is for reasons of efficiency. The power to dismiss is part of a suite of powers in the ART Act intended to promote the efficient use of Tribunal resources, so the Tribunal may dismiss 'rather than endlessly follow on applications where the applicant makes no effort to progress the matter' (Revised Explanatory Memorandum, Administrative Review Tribunal Bill 2024 (Cth), pp. 94-95).
7. As pointed out by Counsel for the Minister, s 100 appears in Subdivision A of Division 8 in Part 4 of the ART Act, which is headed 'Withdrawing and dismissing applications', rather than subdivisions devoted to decisions. The intention of the legislature is clear, that provision is made in the legislation for circumstances where an applicant can withdraw an application, and circumstances where the Tribunal can dismiss an application without considering the merits. To ensure that no injustice results, the Tribunal has power to reinstate the application: s 368C of the Migration Act.
8. Given the statutory framework I am satisfied in the case before me that the Tribunal exercised its powers under s 100 reasonably and there was an evident and intelligible justification for the dismissal.
9. For all these reasons I am satisfied that the Tribunal exercised its discretion to dismiss reasonably.
10. The third ground does not identify jurisdictional error by the Tribunal.

1. The fourth ground specified by the applicant was as follows:

The Tribunal failed to conduct a hearing despite of the fact that I asked the tribunal to do not give any decision without conducting a hearing.

1. The Minister submitted that there was no evidence that the applicant had requested a hearing in the matter. This was put to the applicant at the hearing before me. He said that he could not remember when he told the Tribunal that he wanted a hearing (Tp 10.45-11.04). I do not accept that he did so, given the absence of any evidence about this.
2. I have found in preceding paragraphs that it was reasonable for the Tribunal to exercise its discretion to dismiss.
3. There is no jurisdictional error arising from a failure to conduct a hearing.

1. The fifth ground as contended by the applicant was as follows:

The Tribunal Failed to truly recognise the merits of the application.

1. The applicant refrained from providing submissions on this ground at the hearing (Tp 11.14).
2. To the extent that the applicant is claiming in this Ground that the Tribunal should have considered the merits of the matter rather than dismissing the matter, I have found in preceding paragraphs that the Tribunal exercised its discretion to dismiss reasonably.
3. No jurisdictional error is demonstrated in Ground Five.

1. The sixth ground as specified by the applicant was as follows:

I request the honourable Court to set aside the decision and instruct the Tribunal to deal the matter according to the applicable law

1. To the extent that the applicant is claiming that the Tribunal did not apply the law correctly or reasonably, I have considered these questions earlier in the judgment and found that there is no jurisdictional error in the Tribunal Decision.
2. No jurisdictional error is demonstrated in Ground Six.

Is an extension of time needed in the administration of justice?

1. I have considered above whether the grounds for review have merit, on the basis that they are 'arguable', 'reasonably arguable' or 'sufficiently arguable' to warrant the grant of extension of time: MZABP at [62]-[63]. I am not satisfied that the six grounds advanced by the applicant have merit or that there are any prospects of success.
2. I acknowledge that there may be adverse impact for the applicant if no extension is granted. I have taken guidance from the High Court in Katoa at [12], that the Court's power to extend time is not focused on the interests of the applicant but rather on the broader interests of the administration of justice.
3. While I have not ascribed significant adverse weight to the extent of the delay and the reasons given, I do attribute significant weight to the lack of prospects of success. There is no benefit in wasting time and cost for all involved if the case has no merits. For this reason, I am not satisfied that it is needed in the interests of administration of justice for the extension of time to be granted: s 477(2)(b) of the Migration Act.

Was there jurisdictional error in the Confirmation Decision?

1. An application was made to this Court for judicial review of the Confirmation Decision dated 5 May 2025, as well as the Dismissal Decision dated 17 March 2025. There was no need for the applicant to apply for an extension of time in relation to the Confirmation Decision, as the applicant applied within time.
2. Although the applicant has not particularised his grounds of review in relation to the Confirmation Decision, I have considered whether the Confirmation Decision was made in accordance with law and was reasonable.
3. As set out in the preceding paragraphs in relation to the extension of time, the applicant was notified of the Dismissal Decision on 17 March 2025 and provided with 28 days to apply for reinstatement (CB 136). The applicant was notified that on receiving an application for reinstatement, the Tribunal may reinstate the applicant if it was considered appropriate to do so. The applicant was notified that if he did so, the application would be taken never to have been dismissed (CB 136). The applicant was also notified that if he did not apply for reinstatement within the 28 days period, the Tribunal 'must confirm the decision to dismiss the application' (CB 136).
4. In the Confirmation Decision, the Tribunal referred to the Dismissal Decision dated 17 March 2025, noting that the Tribunal had dismissed the application under s 100 of the ART Act as the applicant had failed to comply with an order of the Tribunal under s 79(1) of the ART Act (Confirmation Decision [2]).
5. The Tribunal went on to refer to the notification of the Dismissal Decision and the fact that the applicant had been advised that reinstatement could be sought within 28 days of the receipt of the Dismissal Decision.
6. The Tribunal also noted that the applicant had been advised that a failure to apply for reinstatement within 28 days would result in confirmation of the Dismissal Decision (Confirmation Decision [3]).
7. I have found in preceding paragraphs that there was no reasonable prospect of success for the applicant in contending that the Tribunal's decision to dismiss the matter was legally unreasonable.
8. In the circumstances of the matter before me, where the applicant did not apply for reinstatement, there was no choice but for the Tribunal to confirm the dismissal: ss 368C(2)(b) and 368C(5) of the Migration Act.
9. The decision of the Tribunal to dismiss was lawful. There is no jurisdictional error in relation to the Confirmation Decision.

1. I am not satisfied that it is needed in the interests of the administration of justice for extension of time to be granted for judicial review of the Dismissal Decision.
2. I am not satisfied that the Confirmation Decision is attended by jurisdictional error.
3. Accordingly, the application for extension of time is dismissed and the application for judicial review of the Confirmation Decision is dismissed.
4. The Court will hear the parties on costs.

I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.