Chhabra v Minister for Immigration and Citizenship [2025] FedCFamC2G 1053

1. By an Application in a Proceeding filed in this Court on 21 May 2025 (Reinstatement Application) the Applicant seeks reinstatement of the application for review of a decision of a Registrar of this Court filed by the Applicant on 22 April 2025 (Application for Review). On 3 April 2025 the Registrar made an Order pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) summarily dismissing the application for judicial review made by the Applicant with costs (3 April 2025 Orders).
2. On 9 May 2025 the Application for Review came before me for Hearing of Interlocutory Application (Review Hearing). The Applicant did not appear at the Review Hearing. The First Respondent (Minister) made an oral application for the proceedings to be dismissed pursuant to r 13.06 of the GFL Rules. Having been satisfied that the Applicant had notice of the Review Hearing, had not sought an adjournment and had not complied with Orders or rules of the Court I made Orders dismissing the Application for Review and for the Applicant to pay the Minister's costs in the amount of $2,435.81 (9 May 2025 Orders).
3. I have decided to dismiss the Reinstatement Application.

1. The Applicant is a citizen of India. The Applicant applied for a Temporary Graduate (Post-Study Work) (subclass 485) visa (Visa) on 31 December 2020 (Visa Application). The Delegate of the Minister (Delegate) decided not to grant the Visa on 6 October 2021 (Delegate's Decision).
2. The Applicant applied to the Tribunal for review on 21 October 2021 and attended a hearing before the Tribunal with his representative on 29 February 2024.
3. The decision not to grant the Visa was affirmed by the then Administrative Appeals Tribunal (Tribunal) on 15 March 2024 (Tribunal's Decision). The Applicant was notified of the Tribunal's Decision on 18 March 2024. The Tribunal, in line with the Delegate's Decision, found that the Applicant did not satisfy cl 485.231(3) of the Migration Regulations 1994 (Cth) (the Regulations), being primary criteria for the Visa, as he did not satisfy the Australia study requirement in the six (6) months immediately before the date of the Visa Application. The Applicant had provided to the Tribunal a letter from Melbourne Institute of Technology which stated that the Applicant had completed all course requirements for a Masters of Telecommunication degree on 18 January 2021.
4. The Applicant filed the Application for Judicial Review in this Court on 18 April 2024 (Initiating Application). The Initiating Application was accompanied by an Affidavit of the Applicant that annexed the written reasons for the Tribunal's Decision. The Minister filed a Response on 17 June 2024 seeking summary dismissal of the Initiating Application.
5. On 3 April 2025 the Registrar summarily dismissed the Initiating Application pursuant to rule 13.13(a) of the GFL Rules with costs.
6. On 22 April 2025 the Applicant lodged the Application for Review, which was accepted by the Court for filing on 24 April 2025. An affidavit was filed by the Applicant in support of the Application for Review. The affidavit annexed the 3 April 2025 Orders and contained a statement of background events and the grounds of judicial review asserted by the Applicant. The Application for Review was not filed within the prescribed period being within seven (7) days of the exercise of a power by a Registrar. The Application for Review therefore requires an extension of time. The grant of an extension of time was opposed by the Minister who pressed the application for summary dismissal.
7. On 5 May 2025 I made Orders listing the Application for Review for an Interlocutory Hearing on 9 May 2025 and for the filing of a response from the Minister, and an outline of submissions from each party. No outline of submissions was filed by the Applicant.
8. On 7 May 2025 the Minister filed outline of submissions seeking dismissal of the Application for Review together with costs. The Minister opposed an order granting an extension of time.
9. The Review Hearing was held and the Applicant did not appear. The Minister was represented by a solicitor. I made the 9 May 2025 Orders which were emailed by my Chambers to the Applicant's nominated email on 9 May 2025 at 11:01am.
10. The Applicant now seeks reinstatement of the Application for Review. The Applicant filed the Reinstatement Application on 21 May 2025. On 21 May 2025 the Reinstatement Application was listed for Hearing on 11 June 2025 and I made Orders for the filing of material. The Applicant did not file any material in accordance with these Orders. The Minister filed consolidated submissions and a list of authorities.
11. The Reinstatement Application came before me on 11 June 2025 (Reinstatement Hearing). The Applicant appeared and a solicitor for the Minister appeared.

1. The Reinstatement Application seeks orders as follows:
   1. The application seeking reinstatement is allowed.
   2. Orders 1 and 2 of the orders made by Judge Bingham on 9 May 2025 be set aside.
   3. The application for review of Registrar's decision made on 22 April 2025 be reinstated.
2. The Court has the power to set aside orders pursuant to r 17.05(2)(a) of the GFL Rules.
3. Whether or not to accede to a reinstatement application is a discretionary power. The Court must consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 (FBS18) at [50].
4. In FBS18 the Full Court approved the factors relevant to exercising the discretion to reinstatement a matter as outlined by Ryan J in MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 (MZYEZ). At [7] of MZYEZ Ryan J listed the factors as follows:

(a) Whether there is a reasonable excuse for the party's absence;

(b) The existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and

(c) Whether the application for reinstatement has a reasonable prospect of success in the substantive proceeding, with the grounds to be taken at an impressionistic level: see MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J (as her Honour then was); DHX17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475 (DHX17); FKV17 v Minister for Home Affairs [2022] FCAFC 93; Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 96 ALJR 819 (Katoa).

1. Justice North in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2005] FCA 1066 observed:
   1. The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.

1. The principles articulated in extension of time matters are relevant to reinstatement applications as the standard of assessment of merits is the same: AVC19 v Minister For Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1752 at [3] to [5] per Davies J.

1. The Applicant's Affidavit filed on 21 May 2025 at [11] stated, "I arrived at the Melbourne registry late due to my car breaking down on my way to the Court". The correspondence from the Applicant to my Chambers on 8 May 2025 stated, "[...] I am interstate at the moment and I won't be able to come back to Melbourne by today itself".
2. The Minister submitted that the excuse proffered in the affidavit material filed by the Applicant was not a reasonable excuse for failing to appear.
3. At the Hearing the Applicant explained that he had arrived at the Court at 9:35am and attended registry where he was provided with orders dismissing the matter for non-appearance. The matter was listed for hearing at 10:00am and no such orders dismissing the Application for Review for non- appearance were in existence at 9:35am on 9 May 2025. I pressed the Applicant regarding what floor of the Court he attended and who he spoke to. He was unable to identify the floor simply stating "one or two level[s] upstairs" and that he had received a copy of my decision dismissing his application for non-appearance from a registrar. The inconsistency regarding the reasons for the Applicant's failure to appear between his email of 8 May 2025 and the reason given in his affidavit together with his alleged attendance at Court at 9:35am on the day of the Review Hearing when scheduled for 10:00am adversely affects the credibility of the Applicant's submissions regarding his reason for not appearing. I do not consider that the Applicant has provided a reasonable excuse for his non-appearance on 9 May 2025.

The delay in filing the Reinstatement Application

1. The Reinstatement Application was filed 11 days after the 9 May 2025 Orders. The Applicant said he had no reason for the delay in filing the Reinstatement Application. The Minister made no submissions regarding this delay. In the scheme of things this may not appear to be a substantive delay except when considering the context of the Application for Review that the Applicant seeks to reinstate and that too needs a 12 day extension of time. It is unacceptable that no reason was provided as to why there was a delay in filing the application. No special rules apply to litigants in person regarding obligations to comply with the rules of this Court.

1. The Minister conceded that the Minister would not face any prejudice as a result of the reinstatement of the Registrar's review that could not be remedied by a costs order. As submitted by the Minister a lack of prejudice is not in itself a sufficient reason to grant reinstatement.

1. Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides:

(1) A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:

(a) within the time prescribed by the Rules of Court; or

(b) within any further time allowed in accordance with the Rules of Court;

apply to the Court for review of that exercise of power.

1. A review application is not an appeal. In Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39], the New South Wales Supreme Court described a de novo hearing or review application as follows:

(b) It is unnecessary for the applicant for review to demonstrate any material error of fact, or principle, in the order under review.

(e) Although on review, the court should consider the matter afresh, it does not follow that the reasoning of the registrar should be ignored, or that variations in the material presented to her, or him, and the evidence that was adduced are irrelevant. The starting point is, therefore, the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. The court will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946 at [24] - [26].

The real question is whether there are any grounds, or any reasons, which would warrant a review of the orders that have been made by the registrar: Al-Shennag v Statewide Roads Pty Limited at [47].

1. In Newman & Tate [2020] FamCA 1114, Deputy Chief Justice McClelland considered the nature of a review of a registrar's decision at paragraphs [9] to [11] and came to the following conclusion at paragraph [12]:
   1. Accordingly, my task is not one of ascertaining whether, in the making of the Order, there was an error on the part of the Registrar. The review of a Registrar's determination is an original hearing in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at 71 [43].

1. Registrar's have delegated power to summarily dismiss a proceeding. Orders can be made for summary dismissal under rule 13.13(a) of the GFL Rules or under s 143(2) of the FCFCOA Act. The Court must establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer); Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przybylowski). The Court is not required to be satisfied that the applicant is bound to fail. The party submitting the application for summary dismissal has the onus of proving that the applicant has no reasonable prospects of success.
2. Given orders are made at an early stage of the proceedings, the discretionary power to summarily dismiss an application must be exercised with caution. In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, Gaudron, McHugh, Gummow and Hayne JJ commented as follows at [57]:

[...] Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

Citations omitted.

1. The Court must undertake "a critical examination of the available material to determine whether there is a real question of law or fact which should be decided at trial": Spencer; Przybylowski; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46].
2. In the Application for Review the Applicant sought a review of the Orders of the Registrar dated 3 April 2025. The relief sought by the Applicants was expressed in the following manner:

Details of orders sought to be reviewed

I am seeking to review all the orders on this application (copy attached).

Orders sought

1. The application for review of the decision of the Registrar made 3 April 2025 is allowed;
2. Orders 1 and 2 of the orders made by the Registrar on 3 April 2025 be set aside;
3. The application for judicial review filed 18 April 2024 is reinstated and is to be listed for final hearing on a date to be fixed.

1. Rule 21.02 of the GFL Rules provides that an application for review of a Registrar's decision must be made within seven (7) days of the exercise of a power by a Registrar. An application for review must be listed for hearing as soon as possible, and unless it is impractical to do so, within 14 days after the date of filing[1].
2. The Registrar's Orders were made on 3 April 2025. The last day of the prescribed time period for the Applicant to file the Application for Review was 10 April 2025. The Application for Review was lodged on 22 April 2025 at 11:55am. As a result the Applicant requires an extension of time of 12 days.
3. The Court has a broad discretion under r 21.02 of the GFL Rules to extend time for the filing of an application for review. It is well established that the following factors should be taken into account in determining whether it is in the interests of the administration of justice to extend time:

(a) The length of delay and whether there has been a reasonable and adequate explanation for it, noting that the weight of these factors in any given case can vary considerably: MZZGC v Minister for Immigration & Border Protection [2015] FCA 842 at [15];

(b) Whether there is any prejudice to the Minister; and

(c) Whether the applicant's substantive grounds seeking judicial review justify the extension of time, noting that "[w]hether that standard of veracity is described as being 'arguable', 'reasonably arguable', or 'sufficiently arguable' or having 'reasonable prospects of success'", the hurdle is relatively low: DHX17 at [76].

1. At the Reinstatement Hearing the Applicant said that he had no reason for the delay in filing the Application for Review. The delay is some 12 days and may not appear substantive but the delay must be considered in the context of the rules in that the time for filing such and application is only seven (7) days and that the application for review be listed before a judge within 14 days of filing. In these circumstances the extension of time sought is almost double the time specified for filing under the GFL Rules and is without excuse.

1. The Minister submitted that any prejudice can be addressed by way of costs.

1. Importantly, I am to consider whether the Initiating Application is "sufficiently arguable" to warrant the granting of an extension of time. The Court is to undertake an impressionistic examination of the grounds of review. In DHX17, citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], the Court observed at [68], that:
   1. [...] As the discussion in the authorities reveals, the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review. [...]

1. A closer examination of the merits is appropriate in some cases: see Katoa at [18].
2. The question before the Court is whether any of the grounds are 'arguable', 'reasonably arguable', 'sufficiently arguable', or have 'reasonable prospects of success'.
3. The two (2) grounds of review in the Initiating Application were:
   1. The Tribunal failed to act according to substantial justice and merits of the case, in breach of s 420(b) of the Migration Act 1958 and/or failed to act in a way that is fair and just, in breach of s 422B(3) of that Act.
   2. The Tribunal failed to carry out its statutory task of review with respect to assessing whether I meet the requirements for the grant of the visa, set out in cl 485.231(3) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

1. At the Reinstatement Hearing I asked the Applicant about each of the grounds of review.

1. The Applicant stated that he made an 'technical error' because he was not aware that he needed to file another visa application. He submitted that on humanitarian grounds his visa application should be reconsidered.
2. In the Minister's written submissions Ground 1 was considered in the context of asserted breaches of ss 353(b) and 357A(3) of the Migration Act 1958 (Cth) (the Migration Act). It was submitted that neither s 353 nor s 357A(3) give rise, on its own to a jurisdictional error.[2] The Minister submitted that the Tribunal complied with its procedural fairness obligations required by Division 5 of Part 5 of the Migration Act. The Applicant was properly invited to a hearing, attended the hearing aided by a representative, was given the opportunity to make post hearing submissions and was on notice of those issues arising from the decision being reviewed.
3. I agree with the submission of the Minister that in so far as it is alleged that a procedural fairness was not accorded to the Applicant such an allegation cannot be made out by the Applicant.
4. I asked the Minister's representative to address me on the Applicant's oral submission that the Visa Application be reviewed on humanitarian grounds. The Minister submitted that I had no such power. I agree with the Minister.
5. The Applicant was invited to respond in reply to the Minister's submission and declined to do so.
6. The Applicant is unable to show that he has reasonable prospect of establishing a jurisdictional error with respect to this ground.

1. The Applicant's submission on this ground was confused. At its highest the Applicant's submission appeared to be that he was not aware of the rules and regulations that applied to applying for the Visa and that it was again his technical error.
2. It was submitted by the Minister that the Tribunal correctly identified the dipositive issue before it namely whether the Applicant satisfied cl 485.231(3) of the Regulations. The only evidence before the Tribunal was that the Applicant had the degree conferred upon him after he applied for the Visa and therefore did not meet the criteria for the grant of the Visa, namely that the Applicant must satisfy the Australian study requirement in the period of six (6) months immediately before the day the application was made. The failure to comply was based upon objective facts and dates. The Applicant does not dispute that the degree conferral date post-dated his Visa Application.
3. The Applicant is unable to show that he has reasonable prospect of success of establishing a jurisdictional error with respect to this ground.

1. In my view it is not in the interests of the administration of justice to reinstate the Application for Review the Applicant is unable to show that he has reasonable prospect of succeeding on his review grounds as such I dismiss the Reinstatement Application.
2. The Minister sought costs of $2,435.81 which is less than the scale amount, as prescribed in Item 2, Division 1, Part 2 of Schedule 2 of the GFL Rules. Accordingly, the Applicant is to pay the Minister's costs in the sum of $2,435.81.
3. Orders will be made accordingly.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.

[2] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332.