Devani v Minister for Immigration and Citizenship [2026] FedCFamC2G 77

1. On 2 May 2019, the applicant applied to the Tribunal for review of the delegate's decision (CB 47-8).
2. A hearing of the applicant's review application took place before the Tribunal at Melbourne on 7 November 2019. The Tribunal gave oral reasons affirming the delegate's decision to refuse to grant the visa (CB 76-80).

1. On 3 December 2019, the applicant lodged a second application for review with the Tribunal, attaching the delegate's decision (CB 81-4).
2. On 22 January 2020, the Tribunal sent correspondence to the applicant, inviting him to comment by 5 February 2020 on the validity of the second application, as an application for review of the same delegate's decision was previously made (CB 95-6). No response to that invitation was received by the Tribunal (CB 98) and the applicant does not claim that he gave one.
3. On 31 March 2020, the Tribunal notified the applicant of a decision made on 26 March 2020 that it had no jurisdiction to determine the second application for review and dismissed the second application for review (CB 101-9) (Decision).
4. In the Decision, the Tribunal held that the Tribunal did not have jurisdiction to conduct a review of a delegate's decision twice (CB 109 [3]).

1. On 4 May 2020, the applicant applied for judicial review of the Decision (CB 2-6). The time within which to bring an application for judicial review is 35 days from the date of the migration decision sought to be reviewed (s 477(1) of the Act).
2. The application for judicial review was four days late because the date of the Decision was 26 March 2020 (s 368(2) of the Act) and not 31 March 2020, which was the date on which it was communicated to the applicant. Therefore, the applicant must seek an extension of time within which to commence the application for judicial review under s 477(2) of the Act.
3. In the application for review, the applicant explained the grounds upon which he sought an extension of time in handwriting as follows:
   1. UNDER THE IMPRESSION THAT THE AAT'S DECISION WAS MADE ON 31 MARCH.
   2. HENCE, THE LAST DATE AS PER MY KNOWLEDGE IS TODAY -35 DAYS.
   3. EVEN MY VEVO CHECK IS SHOWING THE SAME
   4. DIDN'T HAVE MONEY TO SOUGHT AFTER A CONSULTATION WITH LAWYER.
4. The application for judicial review was also completed by hand. In the application, the applicant was identified as the person filing the document and he gave a residential address in Bendigo as the address for service (CB 2-4).
5. In the application for judicial review, the applicant identified the following grounds of review (CB 4):

1. MY VISA APPLICATION FOR TEMPORARY GRADUATE [485 SUBCLASS] WAS REFUSED ON 30TH APRIL 2019.

2. IT WAS REFUSED ON THE BASIS OF NOT PROVIDING THE AFP CERTIFICATE DURING THE TIME OF APPLICATION.

3. THE AFP CERTIFICATE WAS MISSED EXCEPT FOR OTHER DOCUMENTS INCLUDED IN THE APPLICATION.

4. I REQUEST TO CONSIDER THE APPLICATION ON COMPELLING GROUNDS, AS I DID MY APPLICATION ON MY OWN.

1. The application was supported by an affidavit affirmed by the applicant on 28 April 2020, annexing the second Tribunal Decision, a letter to the 'Case Officer' requesting a review of the delegate's decision and a screenshot of a bridging visa confirmation granted 5 March 2019 but expiring on 5 May 2020 (CB 7-12). The affidavit did not address or provide any explanation for the delay in filing the application for judicial review, or explain why a second application for review was made to the Tribunal in lieu of an application for judicial review of the first decision of the Tribunal.
2. On 12 October 2020 and 14 May 2025, a registrar made orders that the applicant file and serve any amended application with proper particulars of the grounds of the application, written submissions and any further affidavit evidence on which the applicant seeks to rely. The applicant did not comply with these orders or file any further evidence in support of the application for an extension of time.
3. In the application for judicial review, the applicant did not seek, by way of relief, a writ of mandamus directed to the Tribunal, requiring it to determine the applicant's application according to law (CB 4).
4. The hearing of the application for an extension of time was listed before this Court, in person, at Melbourne, on 11 November 2025.
5. At the hearing, the applicant appeared self-represented. Ms Ali, solicitor appeared for the Minister.
6. As the applicant was self-represented, the Court explained at the hearing that to obtain an extension of time under s 477(2) of the Act, the applicant must provide a satisfactory explanation of the delay in bringing the application and establish that the application for judicial review has some reasonable prospects of success, viewed on an impressionistic basis. The Court must be satisfied that it is necessary in the interests of justice to grant an extension of time.
7. The Court invited the applicant to explain the delay in filing the application for judicial review and the merits of his claim for judicial review of the Decision.

1. The applicant submitted that he was delayed in bringing the application for judicial review for financial reasons. He submitted that he made the application during the COVID-19 period and that he had lost his job at the time. He did not have funds and was 'just surviving at the time'. The applicant submitted that he was refused the visa because his application was not accompanied by an AFP check but he has since obtained one and therefore the delegate's decision should be set aside, and the Tribunal should have considered this.
2. When asked to address why the Decision made 26 March 2020, which was the second decision and not the first decision, was made in error by the Tribunal, the applicant said that he was not given a hearing to explain that he had obtained a AFP check and should now be granted the visa.
3. When asked to explain why the Decision was 'wrong', the applicant explained that he wanted to submit the 'certificate' and 'wanted to give the reason' but he was not heard by the Tribunal, and his application was dismissed. The applicant submitted that 'I felt like I hadn't been heard at all'.
4. The applicant was then directed to the letter sent to him from the Tribunal, dated 22 January 2020, in which the applicant was invited to comment on the validity of his second application for review, to which he did not respond (CB 95-6). The applicant claimed that he passed the letter on to his lawyer, but his lawyer had failed to respond. The applicant claimed that because he did not have funds, his lawyer did not attend to 'formalities' on his behalf.
5. The applicant was then directed to the second application for review made to the Tribunal (CB 81-2) in which no legal representative or migration agent is referred to, and in which the address for correspondence is to the applicant in person.
6. The applicant then claimed that a lawyer assisted him in completing documents for both the Tribunal and his application to this Court for judicial review. The lawyer filed documents on his behalf. The applicant went further to say that his personal details were put on documents for this proceeding but the originating application and affidavit were in fact filed by his lawyer.[1] The applicant claimed that he paid a lawyer to act on his behalf, and that a lawyer prepared the documents for the Tribunal applications, the application for judicial review and the extension of time, and then filed them with the Court on his behalf. He also claimed that the handwriting on the application for judicial review and the affidavit in support was not his handwriting. He claimed that he 'signed' the affidavit at the Bendigo Court House but the handwriting on that document (apart from the signature) was not his (CB 8-9).
7. The applicant claimed that his lawyer had now gone missing and had 'completely disappeared'. The applicant offered to produce proof of payment of fees to the lawyer and identified the lawyer as 'Rashika Prakash'.

1. The Minister relied on an outline of written submissions filed 28 October 2025. The Minister sought the dismissal of the application to extend time on the grounds that there was no adequate explanation for delay by the applicant and the application for judicial review had no prospects of success because the Tribunal was correct to dismiss the second application for review for want of jurisdiction (SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164 at [41] per Scarlett FM; Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; [1997] FCA 551 (Jayasinghe) and SZASP v Minister for Immigration and Citizenship [2007] FCA 771 at [17] per Moore J).
2. It was submitted that the Court is required to assess or evaluate all of the relevant circumstances to decide if the Court is satisfied that the extension of time is necessary in the interests of justice (Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Tu'uta Katoa)). In this case, there was no jurisdictional error identified in the Decision and the Tribunal was correct to find as a jurisdictional fact that it did not have jurisdiction to review the delegate's decision for a second time.
3. The applicant was also given an opportunity to address the Tribunal's concern regarding the jurisdiction to review a decision of the Minister for a second time (CB 94-6), and did not respond to the invitation to comment. Therefore, the Tribunal complied with procedural fairness requirements before making the Decision (SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35]- [37]).
4. Ms Ali also submitted that the applicant's claim to have been represented by a lawyer at both the Tribunal level and before the Court was not supported by any evidence, and was contrary to the documents filed by the applicant and the correspondence in the Court Book. The Minister also relied on the public interest in the need for finality of administrative decision-making (Makarov v Minister for Home Affairs (No 3) [2020] FCA 1655 at [128]).
5. The Minister did not oppose the Court exercising the power to remedy the failure to seek a writ of mandamus in the originating application for judicial review.

1. The applicant sought further time within which to prove that the person he identified was acting on his behalf at the time of the application for review before the Tribunal, and at the time of commencing this proceeding. He claimed that he could prove that the person he identified claimed to be a lawyer and that he paid legal fees. He said that 'some fraud activity has happened' and that he was not aware that 'things legally has been done in this application'. He asked for some 'time to turn this situation around'. When asked how long he required, the applicant responded, 'three months'.
2. The Court reminded the applicant that the application for judicial review was filed more than five years ago and that the registrar made orders for filing of further evidence and submissions in 2020 and again in May 2025. The applicant could not explain why documents had been sent to him from the Court when he thought a lawyer was acting on his behalf. The applicant claimed that he had contacted another immigration lawyer recently, but that they were unable to assist him 'at the moment'.
3. The Court gave the applicant the opportunity to file and serve further affidavit evidence in support of his claims of fraud and that he had instructed a lawyer to act on his behalf in relation to this proceeding. The Court ordered that further affidavit evidence be filed and served by 21 November 2025 that may substantiate the claims raised by the applicant at the hearing. The Court also informed the applicant of the need to address in detail the instructions given to the lawyer, the fees paid and the steps taken by the lawyer on behalf of the applicant, both before the Tribunal and this Court.

1. On 20 November 2025, the applicant filed with the Court a further statement/declaration that purported to be an affidavit. It was not sworn or affirmed, and did not comply with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules). In that document, the applicant asserted, but did not establish with admissible evidence, that he retained a law firm to provide migration advice and representation 'in relation to my visa matter'. The date of the retainer was not identified. The instructions leading to the retainer were not identified. No document confirming the retainer was produced. There was no proof of payment of fees or any correspondence from the lawyer confirming a retainer.
2. The applicant asserted that he was provided with advice but did not provide details of that advice or produce any document recording that advice. The applicant asserted 'fraud and misconduct in relation to my matter' without supporting evidence or documentation. 'PARTICULARS OF FRAUD AND MISCONDUCT' were contained in the statement but there was no documentation or other evidence to support these particulars. The particulars were general and vague at best. Attached to the document in support of these allegations was an extract of a Facebook page stating that the firm that the applicant allegedly retained was engaged in fraudulent migration schemes. The source of that information was not identified, nor was there any evidence to establish the truth of the matters alleged by the author. An extract from a Facebook page is not admissible evidence or proof of the facts contained in it.
3. The applicant also attached correspondence and mobile telephone screenshots of text messages which were said to support these serious allegations, but none of them established the allegations made. Reading the emails as best as one could, given that only partial extracts were provided, it appears that the person who the applicant asserts was instructed to act as his lawyer in this proceeding and before the Tribunal, was assisting the applicant to obtain a further bridging visa (which was about to expire), pending the outcome of this proceeding.
4. No advice or other document was produced by the applicant to establish fraud or misrepresentation, and the Court is not satisfied that the strict requirements of proof of a fraud on the Tribunal or this Court in relation to the Decision can be or is established (Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 at [82]; SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [29] and recently Chaudhary v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1339 at [23]- [28]).

1. The factors which the Court should consider in determining whether to grant an extension of time include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the application for review and any prejudice that may be suffered by the Minister, noting that the absence of prejudice is not sufficient basis alone to grant an extension (see Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344 at 349 [18]; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [18] and Tu'uta Katoa).
2. In Tu'uta Katoa, Kiefel CJ, Gageler, Keanne and Gleeson JJ said at [12] (when considering s 477A(2) of the Act which is in substantially the same terms as s 477(2) of the Act):

[12] On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s477A(2)(a) and the courts satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject matter, scope and purpose" of the Act. The focus of s477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to 3rd parties in the merits of the underlying application. The level of satisfaction for the Court to reach is not low; 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.

1. In this application, there has been no adequate explanation for the delay by the applicant in filing the originating application for judicial review. The delay in doing so was not significant and could have been candidly explained in an affidavit that illustrated the steps taken by the applicant to advance his rights of review between 31 March 2020 and 4 May 2020, and his misunderstanding as to the date on which the Decision was made. However, the delay between 31 March 2020 and 4 May 2020 has not been credibly explained in an affidavit and the applicant's claims to have been misled or deceived by his lawyer are rejected because they are not supported by credible or reliable contemporaneous evidence. The statement filed by the applicant on 20 November 2025 does not provide a sufficient level of admissible detail to adequately explain the delay, or to establish that he was misled or deceived by his lawyer as he now claims.
2. The applicant claimed impecuniosity as an explanation for delay. That claim was not supported by credible evidence, and is also not an adequate reason for granting an extension of time in the circumstances (GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [25]). The extracts from bank statements attached to the applicant's 'affidavit' signed 20 November 2025 show that the applicant was able to pay fees due to the Tribunal on 4 May 2020, fees payable for the originating application in this Court and other expenses. There is no evidence that he was unable to pay for legal representation, or that his impecuniosity prevented him from filing his application to this Court in accordance with the time prescribed by the Act. The bank statements also reveal that the applicant was receiving payments for salary and from other unexplained sources, contrary to the assertions in the application for an extension of time that he was unemployed due to the COVID-19 pandemic.
3. More importantly, the grounds of review upon which the applicant seeks to rely to have the Decision quashed and remitted to the Tribunal have no prospects of success, even when considered on an impressionistic basis. The Tribunal did not err in determining the jurisdictional fact that it did not have jurisdiction to review the decision of a delegate for a second time (Jayasinghe at 311 per Goldberg J and SZASP at [17] per Moore J).
4. Each of the grounds of review identified by the applicant in the application for judicial review are vague and do not identify jurisdictional error. At best, the applicant is seeking merits review based on the production of a AFP check. This Court is not permitted to undertake such a review and therefore, the application for judicial review appears misconceived in that regard.
5. There has also been no denial of procedural fairness by the Tribunal when dismissing the applicant's second application for review. Division 5 of Pt 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to review by the Tribunal of decisions of a delegate of the Minister and the Tribunal is obliged to comply with those requirements (see s 357A of the Act).
6. The Tribunal invited the applicant to comment on the jurisdictional fact that it lacked jurisdiction to review the delegate's decision for a second time. The applicant did not do so. There was no obligation to give the applicant a further, more meaningful hearing when the Tribunal did not have jurisdiction to conduct a further review.
7. The Court is not satisfied that it is necessary in the interests of justice to grant an extension of time to bring an application for judicial review under s 477(2) of the Act.

1. During oral submissions, the Court noted that in the application for judicial review, the applicant has only sought an order to quash the Tribunal decision and did not seek a 'writ of mandamus' requesting the matter be remitted to the Tribunal, to be determined in accordance with law (CB 4). An application that fails to seek a writ of mandamus or prohibition, or an injunction, has the result of not properly invoking the Court's jurisdiction pursuant to s 476(1) of the Act (see FRA18 v Minister for Home Affairs [2019] FCCA 2287 at [15] and [21]).
2. The Minister does not oppose remedying this error, therefore the Court will order that the application dated 4 May 2020 is amended to seek a writ of mandamus. The Court has the power to do so, even on its own motion (see Singh v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 889 at [44]-[51]). The Court finds that it is in the interests of justice and the overarching purpose of the Rules to dispense with non-compliance with the Rules, for the purpose of amending the originating process in this proceeding.

1. Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for judicial review in the sum of $4,553.02, which is the scale amount for a contested application concluded at an interlocutory hearing provided for in Sch 2, Pt 3, Div 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
2. The sum claimed is fair and reasonable in the circumstances of this case and will be ordered to be paid by the applicant.

1. Pursuant to r 8.09 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth), the application for judicial review dated 4 May 2020 is amended to seek a writ of mandamus directed to the second respondent, requiring it to determine the applicant's application for review according to law.
2. The application for an extension of time within which to seek judicial review filed 4 May 2020 be dismissed.
3. The applicant pay the first respondent's costs and disbursements of and incidental to the proceeding, fixed in the sum of $4,553.02.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

[1] Noting that in the grounds of review in the originating application for judicial review, the applicant claims that he completed the application 'on my own' (CB 4).