Hyder v Minister for Immigration and Citizenship

1. By way of Application filed on 2 July 2025, the applicant (Applicant) seeks review of a decision made by a Registrar of this Court, pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) Act (FCFCOA Act).
2. On 11 June 2025, a Registrar summarily dismissed the principal Application, which sought judicial review of a decision made by the Second Respondent (Tribunal) to affirm a decision of a delegate of the First Respondent (Minister) not to grant the Applicant a Student (Temporary) (Class TU) (Subclass 500) visa (Visa).
3. The Application was filed outside of the prescribed seven-day timeframe provided by r 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). As a result, the Applicant requires an extension of time to prosecute his review Application.
4. The hearing of the Application took place at the Melbourne Registry of the Court on 24 July 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

1. The issue in dispute is whether the Applicant has identified a proper basis upon which the Court should be satisfied that it is necessary in the interests of the administration of justice to make an order extending time for the filing of an Application pursuant to s 447(2) of the Migration Act (Cth) (Migration Act).

1. The Applicant is a citizen of Pakistan and arrived in Australia to study in February 2013.[2]
2. On 22 March 2019, the Applicant lodged an application for the Visa.[3]
3. On 11 June 2019, a Delegate of the Minister refused to grant the Visa on the basis that the Applicant failed to satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[4]
4. On 17 June 2019, the Applicant sought review of the Delegate's Decision before the Tribunal (Review Application).[5]
5. On 27 April 2020, the Tribunal invited the Applicant by way of a s 359(2) letter to provide information by completing a 'Request for Student Visa Information' form (Request Form). The invitation stated that the form was to be completed by 11 May 2020.[6]
6. On 4 May 2020, the Applicant wrote to the Tribunal and requested an extension of time of '2 to 3 months' to provide information due to the COVID-19 lockdowns.[7]
7. On 4 May 2020, the Tribunal advised the Applicant that it had considered the extension of time request and a response was to be provided by 11 July 2020.[8]
8. On 11 July 2020, the Applicant completed the Request Form and answered 'no' to the question 'Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?'.[9]
9. On 5 January 2021, the Applicant was invited to attend a hearing before the Tribunal via telephone and asked that the Applicant provide a current CoE (Second Hearing Invitation).[10]
10. On 21 January 2021, the Applicant attended the hearing. The Tribunal affirmed the decision under review and provided oral reasons.[11]
11. On 25 February 2021, the Applicant requested written reasons for the decision. On 17 March 2021, the Tribunal provided a written statement of decisions and reasons to the Applicant.[12]

1. The Tribunal's Decision is at 109 to 112 of the Court Book.
2. The Tribunal summarised the background of the matter at [3] to [13].
3. The Tribunal found that the sole issue before it was whether the Applicant satisfied cl 500.211 of the Migration Regulations, which required the Applicant to be enrolled in a registered course of study. The Applicant was notified of this requirement by the Tribunal.[13]
4. The Tribunal considered the Applicant's evidence during oral submissions, in which he conceded that he was not enrolled in a course of study and that he had not been studying for some time. The Applicant submitted that the reason for not being enrolled in a course of study was that he was awaiting the outcome of the Tribunal's Decision.[14]
5. The Tribunal noted that in order for the Applicant to qualify for the Visa he had to be enrolled in a registered course of study at the time of the Tribunal's decision. As the Applicant was not enrolled, the Tribunal affirmed the Delegate's Decision under review.[15]

1. The Application was filed in this Court on 23 February 2021, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act. The Application raised the following grounds of review (Grounds of Review):
   1. The Administrative Appeals Tribunal made a jurisdictional error whilst making decision on application. (Ground 1).
   2. The Administrative Appeals Tribunal member failed to consider all the aspects of the appeal and observe principles of natural justice. (Ground 2).
      1. In considering whether the visa application met the visa grant criteria required by the regulations, the tribunal member failed to fully consider the fully consider the fact that the circumstances of the case were beyond the applicant's control.
      2. The visa applicant was not at fault and yet was affected by exceptional circumstances.

1. In the Minister's submissions filed on 22 May 2025, the Minister sought an Order that the Application be dismissed pursuant to r 13.13 of the Rules. The Application was listed for this purpose before a Registrar on 11 June 2025. The Applicant did not file any further material despite being given opportunities to do so.
2. On 11 June 2025, a Registrar made a decision to summarily dismiss the Applicant's judicial review Application pursuant to r 13.13(a) of the Rules with costs, on the basis that the Applicant had no reasonable prospect of prosecuting the proceeding. The Registrar made this decision exercising delegated power pursuant to s 254 of FCFCOA Act: see also item 58 in r 21.01 of the Rules.
3. On 2 July 2025, the Applicant filed an Application for review of the Registrar's decision.
4. This matter was heard on 24 July 2025 at the Hearing before me. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
5. The Applicant did not file written submissions but made oral submissions at the Hearing.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[16]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The court neither consider the merits of the decision nor remakes it.[17] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[18]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[19] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[20] Different kinds of error may overlap.[21] The categories are not closed.[22]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[23] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[24] It has been described as an "undemanding" standard.[25]

1. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
2. The criteria that the Applicant was required to satisfy for the grant of a Student visa (Subclass 500) are set out in cl 500.211 to 500.218 in Schedule 2 of the Regulations.[26]
3. Clause 500.211 of Schedule 2 of the Regulations provides:

(a) the applicant is enrolled in a course of study;

(b) if the application is made in Australia - the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;

(c) if the applicant is a Foreign Affairs student-the applicant has the support of the Foreign Minister for the grant of the visa;

(d) if the applicant is a Defence student-the applicant has the support of the Defence Minister for the grant of the visa.

1. Section 254 of the FCFCOA Act provides for the making of Rules of Court for the delegation of any of the powers of the Federal Circuit and Family Court of Australia (Division 2) to a delegate which includes a Senior Registrar or a Registrar.
2. Division 21.1 of the Rules lists the powers of the Court that are delegated to a delegate. The powers delegated to Registrars include (at item 58 of schedule 21.1), the power provided for in r 13.13 of the Rules to order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding.
3. Section 256(1) of the FCFCOA Act provides that 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 s 254 may apply to the Court for review of that exercise of power. The Application for review must be made within the time prescribed under the Rules or within any further time allowed in accordance with the Rules.
4. Rule 21.02(1) of the Rules provides that for the purposes of subsection 256(1) of the FCFCOA Act, an Application for review of the exercise of a power by a Registrar must be made within 7 days. Rules 21.02(2)(a) provides that the time prescribed by r 21.02(1)(a) may be extended in a proceeding (a) by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or (b) with the consent of the parties to the proceeding.
5. Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo,[27] or in other words, "anew" or "afresh".
6. Section 256(2) of the FCFCOA Act provides that on a review, the Court may "and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised". On a successful review, the court may set aside the exercise of the delegated power and make consequential orders to unwind the effect of the exercise of that power.[28] Where the review is dismissed, the order made by the delegate continues as a valid and authorised exercise of judicial power from the time of the exercise of that delegated power.[29]

1. Section 143 of the FCFCOA Act provides relevantly that summary judgment may be given in relation to the whole or part of any proceedings where "the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding".
2. Rule 13.13 of the Rules provides that the Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.
3. In Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, French CJ and Gummow J said in relation to s 31A of the Federal Court of Australia Act 1976 (Cth) (which is expressed in similar terms to s 143 of the FCFCOA Act):

The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. ...

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a 'fanciful' prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.

(footnotes omitted)

(a) The party seeking summary disposal bears the onus of persuading the Court that the proceeding has no reasonable prosects of success and should be disposed of summarily.[30]

(b) "The enquiry required to be undertaken is whether there is a reasonable prospect of prosecuting the proceeding, not an enquiry directed to whether a certain or concluded determination could be made that the proceeding will necessarily fail". [31]

(c) "It may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success".[32]

(d) The word "may" in s 143 of the FCFCOA Act is used to indicate the conferral of power, rather than a discretion, such that if the criterion "no reasonable prospects of success" is satisfied, then the Court is bound to exercise the power of summary disposal.[33]

(e) Section 143 of the FCFCOA Act has lowered the bar for summary disposal from earlier provisions.[34]

(f) The power to summarily dismiss must be exercised with "caution".[35]

1. The Applicant's Application to review the decision of the Registrar for the summary dismissal of his Application for judicial review of the Tribunal's Decision was made out of time.
2. On 11 June 2025, a Registrar made a decision to summarily dismiss the Applicant's judicial review Application pursuant to r 13.13(a) of the Rules with costs, on the basis that the Applicant had no reasonable prospect of prosecuting the proceeding. The Registrar made this decision exercising delegated power pursuant to s 254 of FCFCOA Act.[36]
3. Rule 21.02(1) of the Rules provides that an application for the review of the exercise of a power by a Registrar must be made within 7 days. The Registrar's Decision was made on 11 June 2025, which means that the last day for filing the Application for review was 18 June 2025. The Application for review was filed on 1 July 2025. Therefore, the Application for review was made 13 days out of time.
4. The Applicant has sought an extension of time to review the Registrar's Decision.
5. I refuse the extension of time for the reasons that are set out below.
6. The application for an extension of time provided for in r 21.02(1)(a) of the Rules involves the Court exercising the discretion provided for in r 21.02(2)(a).
7. The Court should not grant an extension unless it is positively satisfied that it is "proper" to do so. Factors relevant to the exercise of the discretion to extend time include:[37]

(a) the length of the delay and the explanation for it;

(b) any prejudice to the respondent by the delay;

(c) impact on the applicant of a refusal to grant an extension;

(d) the public interest; and

(e) the merits of the substantive application.

1. The time prescribed by the legislative provision should not be ignored.[38]
2. Generally speaking, the longer the delay, the more persuasive the explanation needs to be,[39] such that where the extension required is for a comparatively short period, a less persuasive explanation may be required.[40]
3. Absence of prejudice is not sufficient, in itself, to justify an extension of time.[41]
4. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579, the High Court held that the Trial Judge had not committed jurisdictional error by forming the view that the substantive application lacked merit in the context of an application for an extension of time under s 477(2) of the Migration Act for the grant of remedy under s 476 of the Act. The extent and manner of consideration of the merits is a matter for the Court,[42] which may include an "impressionistic" assessment.
5. In WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736, in relation to a delay of 26 months, Derrington J stated (at [41] - [44]):

There exists a clear public interest in the prompt disposition of administrative matters and, in particular, of allegations that officers of the Commonwealth have acted in excess of their jurisdiction: MZABO v Minister for Immigration and Border Protection [2016] FCA 980 [5]. In Ex parte Marks, McHugh J said in relation to proceedings in which prerogative writs were sought (at 474 [15]):

[T]he public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

More specifically, the Minister has a legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 2020 [89]; Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929; (2001) 192 ALR 71 [62].

In the circumstances of this case where the delay is extraordinary and not adequately unexplained, it would set at naught the Minister's legitimate concerns in the proper disposition of applications under the Act if an extension of time were granted. In the case of decisions made under the Act in respect of which the time for seeking review has long passed, the granting an extension of time would have the consequence that the right to seek review may be resurrected at any later time thereby necessitating a diversion of resources in circumstances where those administrative officers who were familiar with the matter may have moved on. It can be assumed that the limitation of time in which to make an application for review of the Tribunal's decision has been set by the legislature with the intent that it generally balances the interests of applicants in seeking review with the interests of the Minister and his Department in finalising the decision-making obligations under the Act. Although s 477A(2) enables the Court to extend time, the general temporal limitation cannot be entirely ignored or treated as merely provisional.

The prejudice which the Minister would suffer in this case in relation to the orderly and proper administration of the Act is a further factor which weighs heavily in favour of rejecting the application for an extension of time.

1. I turn now to the merits of the Application for an extension of time.
2. The length of delay in the present case is 13 days, which is more than the 7 day period provided for in the Rules. In the Applicant's affidavit, he said that he could not lodge the review Application within time due to unavoidable circumstances that were beyond his control. At the Hearing, the Applicant said that he told his lawyer to lodge as soon as possible. He said that he was acting on the lawyer's instructions and that it was effectively the lawyer's fault that he lodged his Application out of time. I am not satisfied that the Applicant has an adequate explanation for the delay in filing his Application for review.
3. The Minister did not claim to suffer any specific prejudice by reason of the delay in the filing of the Application for Review. Nevertheless, the Minister has a "legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas".
4. The prejudice to public interest as a result of the delay is that the default, again, is not particularly significant in the instant case, nevertheless the consequent additional burden on the Court is not a matter that cannot be ignored in a context where there is a significant backlog of cases, and a compelling need for the just and efficient resolution of cases. As a general proposition, the efficient management of cases is promoted by adherence to time limits.
5. The prejudice to the Applicant by refusing an extension is that his Application for review of the Registrar's decision to summarily dismiss his application will not be heard on its merits. He contends that he "will not be given a fair chance to present [his] case". This consideration is tempered by the fact that the merits of the summary dismissal application is a matter that I will take into account in the exercise of discretion.
6. I turn then to the merits of the Application for review of the Registrar's decision to make orders for summary dismissal. Given that a review of a Registrar's decision is by way of hearing de novo, this factor requires me to consider the merit of the summary dismissal application, which in turn requires me to consider the merits of the underlying Application for judicial review.
7. The critical question on the Application for summary dismissal is whether the Applicant had no reasonable prospect of successfully prosecuting the Application for judicial review. This question requires consideration of the Applicant's Grounds of Review.
8. The Applicant's Grounds for Review are:
   1. The Administrative Appeals Tribunal made a jurisdictional error whilst making decision on application. (Ground 1).
   2. The Administrative Appeals Tribunal member failed to consider all the aspects of the appeal and observe principles of natural justice. (Ground 2).
      1. In considering whether the visa application met the visa grant criteria required by the regulations, the tribunal member failed to fully consider the fully consider the fact that the circumstances of the case were beyond the applicant's control.
      2. The visa applicant was not at fault and yet was affected by exceptional circumstances.

1. Ground 1 contains little more than a bald assertion of jurisdictional error without identification of it. Without identification of an error, Ground 1 is bound to fail.
2. Ground 2 alleges a failure to observe principles of natural justice because the Tribunal member failed to "fully consider" the fact that circumstances were beyond the applicant's control, and that "exceptional circumstances" mean that he was not at fault.
3. There is no evidence that the Tribunal failed to comply with any of the statutory procedural fairness requirements set out in Part 5 of Division 5 of the Migration Act. For example, there is no evidence that the dispositive issue (of lack of enrolment with a CoE) was not sufficiently identified for the purposes of s 360 of the Migration Act.
4. The difficulty confronting the Applicant was that the requirement of cl 500.211(a) was a mandatory requirement for the grant of a Visa. In circumstances where the Tribunal was not satisfied that the Applicant was enrolled with a valid CoE, a matter confirmed by the Applicant at the Tribunal hearing and again before me, there was no decision open to the Tribunal other than to confirm the Delegate's Decision.[43] In these circumstances, the "issues arising in relation to the decision under review" did not extend beyond the question of enrolment.[44]
5. I do not consider that either Ground 1 or Ground 2 has any substantial merit, and hence I do not consider that the Applicant's Application for judicial review has any substantial merit.
6. Having regard to the matters set out above, particularly the lack of apparent merit in the Applicant's Application for judicial review, and hence lack of merit in the opposition to the summary dismissal application, I refuse the Application for an extension of the time provided for review of the exercise of power by the Registrar. In determining not to extend time for the review, I have been mindful of the principle that the Court should be cautious in exercising the power of summary dismissal, which I take to have application in the context of the Application for an extension of time for review (that would, if an extension of time were granted, be conducted as a hearing de novo) of an order for summary dismissal.

1. In the premises, the Applicant's Application for an extension of time to review the Registrar's decision and the Applicant's application to review that decision, ought to be dismissed. It is unnecessary for me to remake the Registrar's order for summary dismissal of the Application.

1. At the end of each party's submissions, I invited them to make submissions as to costs. In the event that the Application was dismissed, the Minister sought costs in the sum of $1,000. I am satisfied that costs ought to follow the event,[45] and that it is appropriate to make an Order in that amount having regard to the extent of work undertaken as evidenced by the court file.[46]

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 24 July 2025, Order 1.

[16] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (Plaintiff S157/2002).

[17] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O'Callaghan JJ at [17].

[18] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82] (per McHugh, Gummow and Hayne JJ).

[20] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 (LPDT) at [3].

[24] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[25] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).

[27] Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 per Allsop CJ, Markovic & Colvin JJ at [17] - [31].

[28] Robson v Body Corporate for Sterling at Kings Beach CTS 2942 [2021] FCAFC 143; (2021) 286 FCR 494 per Allsop CJ (Markovic & Derrington JJ agreeing) at [2] - [4], [18] - [29].

[30] Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at [45].

[31] Leach v Burston [2022] FCA 87 at [36].

[32] Quach v Commissioner of Taxation [2019] FCA 1729 at [12].

[33] Leach v Burston [2022] FCA 87 at [36].

[34] Noting s 143(3) of the FCFCOA Act.

[35] Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24].

[36] See also item 58 in r 21.01 of the Rules.

[37] See Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344 (per Wilcox J at pp 348-349); compare Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] HCA 28; (2022) 403 ALR 604 per Kiefel CJ, Gageler, Keane and Gleeson JJ (at [21]) and Gordon, Edelman and Steward JJ (at [40]).

[38] Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550.

[39] Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 195.

[40] SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6].

[41] SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 [6].

[42] Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [19].

[43] Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 513 at [17]; Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 149 (Moussa) at [9]; Giri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1046 at [34].

[45] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[46] Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172.