Jillellamudi v Minister for Immigration and Citizenship [2025] FedCFamC2G 1061

1. The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. I have been informed that my associate has been here in the Court room since before 10:00am and there hasn't been any appearance. I am also informed that she called the name of the applicant three times outside the Courtroom and there hasn't been any appearance.
2. But in any event, the applicant was given a video or an audio link to dial in to this meeting. My associate has tried to dial him in herself using the phone number **** which was the phone number that accompanied his application for review which was filed on 30 May 2025.
3. The first phone call made by my associate rang and went straight to message bank. My associate rang again, and it appeared as though someone answered and then hung up the phone because the call didn't go to message bank. She tried a third time in Court, and it rang until it went to message bank.
4. The email advising of the listing was sent earlier this week which noted that the listing was today. The email from the migration team was sent on Monday 9th June, informing all parties that the matter would be heard on Thursday, 12th June at 10:00am.
5. The Minister is here, the interpreter is here, the Applicant has absented himself it would seem knowing that this application was on today and has not made himself contactable by phone.
6. I am not inclined to dismiss the matter for non-appearance; rather, I am inclined rather to proceed with the hearing pursuant to r.13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and determine the matter generally. The reason I am doing this is that it seems that everything the applicant wants to say, he has said in his submissions to the Court and, even though he has not appeared today, the Court has well and truly heard from him because of those submissions.
7. This is an application for review of a registrar's decision. To put the matter into context, it is necessary to look at its history.
8. The applicant, Mr Kotaiah Jillellamudi, applied for a skilled visa on 29 August 2020. Now, for the grant of that particular visa, there were certain criteria. One of the criteria was that the applicant had to either have a passport from a particular country, and, if the applicant did not have such a passport, then he had to provide proof of English language proficiency. In this case, the regulations dictated that the proof of the proficiency had to be in the form of a PTE test, where the applicant scores a minimum score of 36 in each of the categories, but obtains an overall score of 50.
9. The applicant attended a hearing with the delegate of the Minister in 2022. He did not give the delegate a test that showed that he had English proficiency. The delegate refused the visa then on 30 May 2022.
10. The applicant then appeared before the Administrative Appeals Tribunal ("the Tribunal/AAT") on 20 August, asking the AAT to look at his matter again. Before the Tribunal was the evidence that the applicant, in a PTE test conducted on 23 April 2022, had obtained an overall score of 35. In the categories of listening, he received a mark of 35, reading 34, speaking 37 and writing 30. So, he did not meet the minimum overall score of 50, and he did not meet the minimum score required of 36 for each section.
11. Now, the applicant, post the decision of the delegate, went and sat another PTE test. That test was dated 9 September 2022. Again, he did not meet the minimum score required to satisfy the criterion in the regulations that he have proficiency in English.
12. The applicant said to the Tribunal that he knew that he had not obtained the minimum required score, but he had another test booked in October, and he requested further time. The Tribunal did not give him the further time.
13. What he told the Tribunal was that, after receiving a COVID-19 vaccination, he had several health issues that resulted in symptoms, he said, of stammering, forgetfulness and not being able to speak loudly. He said he had also developed a skin condition that prevented him from functioning in his usual way.
14. The applicant requested that the Tribunal give him additional time to obtain evidence that he can meet the English capability requirement. He said that he was recovering still from those COVID-19 vaccination symptoms, and he said that, in two to three months, he would be able to obtain that necessary evidence.
15. The Tribunal noted that the medical certificates that the applicant provided were dated 4 November 2022, 18 September 2023 and 26 September 2023. The medical certificates simply say that the applicant is unfit to attend study or work. The Tribunal decided that they were not going to give any form of adjournment.
16. The Tribunal also noted that the regulatory requirement contains a temporal element; that is, that there had to be an approved English test undertaken in the 36 months prior to applying for the visa and that evidence of a successful test result has to have accompanied the visa application. Given that there was that specific temporal requirement, the Tribunal said that there was futility in postponing the date for the applicant to obtain new evidence because, even if he were able to obtain new evidence, it would post-date the visa application and therefore would not satisfy the criteria in any event.
17. For those reasons, the Tribunal did not give any additional time and ended up finding that the applicant simply did not, and could not, meet the criteria for the grant of the visa.
18. Having failed to meet the requirements of the visa, the Tribunal affirmed the decision of the delegate.
19. The applicant sought judicial review in this Court on 20 September 2024, and he filed his application together with an affidavit.
20. The matter was identified by the Minister as one in which they were going to seek summary dismissal, because the Applicant could not ever be able to satisfy the criteria, and so it was not a matter that needed to go to a full hearing.
21. On 29 January 2025, the registrar, in chambers, made filing directions.
22. On 25 February 2025, the registrar conducted a mention in Court, where the applicant appeared by telephone, with the assistance of an interpreter, and the Minister was represented. Further filing dates were given in the matter.
23. The summary dismissal application was heard by a registrar on 15 May 2025. The registrar summarily dismissed the application of the applicant that had been filed on 20 September 2024.
24. Because this was a decision of the registrar, the applicant has the right of review. This is because the Court has delegated its power to deal with summary dismissal matters to registrars. This is a very good regime because matters that may not truly need the attention of a judge, because of serious deficiencies, can be weeded out of the national docket, by registrars utilising the delegated powers.
25. But the legislation quite properly does put a check with those to balance up the use of judicial power that has been delegated to registrars, and that check is that if a person is aggrieved by a decision of the registrar who uses the delegated power, that person can ask a judge to review the matter.
26. The review takes the form of a de novo hearing. That is why I have not looked at, or brought my mind to bear at all, as to what the decision of the registrar entailed other than the result and certainly have not looked at any reasons of the registrar because they would be irrelevant in my conducting a de novo hearing.
27. The legislation dictates, though, that if a person who is so aggrieved and wishes a judge to review the decision of a registrar, that person must make an application for review within seven days of the decision of the registrar. That means that, because the decision was given on 15 May 2025, the applicant had until 22 May 2025 to lodge the application. The applicant didn't lodge the application until 30 May. This means that the court has to decide whether to extend the time for filing and, if the Court does extend the time for filing, then the Court would go ahead and determine the application for review.
28. In determining the application for extension of time, there are three aspects that the Court focuses upon. The first is what is the reason for the delay in filing, or what is the excuse for not filing the matter on time. The second aspect is what prejudice, if any, is occasioned to the respondent, in this case the Minister for Immigration. And, thirdly, is there an arguable case for the relief sought.
29. This third aspect is the one that I will look at first, because I have to determine whether there is an arguable case that the matter should not be summarily dismissed. In this case, what is clear is that the applicant simply could not satisfy an integral requirement for the grant of the visa.
30. In the applicant's affidavit, that accompanied this application, as well as the application, the applicant says this:
    1. I respectfully submit that the registrar's summary dismissal was premature and denied me a fair opportunity to have my legal arguments heard. I believe the Tribunal committed legal error by:
    2. Failing to afford procedural fairness, particularly in dismissing my request for additional time despite medical evidence that showed I was unable to meet the English language requirement due to legitimate health issues; and
    3. Rigidly applying a regulatory timeframe without adequately considering whether special circumstances - including health complications post-COVID vaccination - justified flexibility.
    4. The judicial review application sought to challenge those legal errors. I believe those issues warranted consideration by a Judge and should not have been dismissed without a substantive hearing.
31. In the application itself, the applicant repeated those same submissions.
32. The problem with those submissions is that they do not come to grips with the substantive issue, which is that the applicant did not have proof that he had passed an English proficiency test in the 36 months before he made the application for a visa. Even if he could be given more time, and more time, and more time to somehow finally pass an English proficiency test, it still would not satisfy the criteria that needed to be satisfied on a temporal basis at the time of the making of the application for the visa.
33. The applicant seems to believe that the requirements have some sort of innate flexibility, or that the Tribunal or the delegate can somehow bend the rules because of the applicant's personal circumstances. There is simply no such room in the legislative instruments that allow for any form of extension of time or any considerations of a compelling nature which would justify the waiving of these criteria.
34. In other words, you either have an English proficiency test in which you have passed, or you don't. There is no in-between.
35. For those reasons, the applicant's submissions are misplaced. There is an aura of futility about what the applicant is attempting to do.
36. Therefore, I am not satisfied that there is an arguable case.
37. As far as prejudice to the Minister is concerned, I acknowledge that Ms Hartwig has, in effect, conceded that there is no appreciable prejudice that would be the cause, in and of itself, for the Court to not extend the time required for filing.
38. I then turn to the first aspect, which is what is the reason or the excuse for the late filing. The applicant wrote in his affidavit, as well as his application, these words:
    1. I acknowledge that this application to review the registrar's decision is being lodged outside the prescribed 7-day timeframe, and I offer the following explanation:
    2. I initially lodged the review of the Registrar's decision within the 7-day period. However, due to an administrative error by the Court, my application was marked as invalid, and the filing fee was refunded. Unfortunately, I did not notice the Court's email notifying me of the error, due to my limited understanding of court procedures and lack of legal knowledge. As a result, I was unaware that the matter had not been validly filed.
    3. Upon realising the mistake, I immediately sought advice and took steps to lodge a corrected and complete application along with this explanation. I sincerely apologise for the delay and respectfully ask the court to exercise its discretion...
39. The problem with that explanation is that the applicant provides absolutely no evidence that this is the case. The Court has the complete file. The Court has a record of all of the emails that have been sent by the registry. The Court also has access to any applications or other documents that are rejected or voided.
40. There are no such documents that have been rejected or voided. There is no email by the registry to the applicant to explain that anything that he had filed had not been validly accepted. The communication on this file shows that there was an email sent to the applicant that enclosed the order of the registrar summarily dismissing his application. The next communication is a communication by the applicant on 30 May. There is no communication noted whatsoever between 15 May and 22 May.
41. I note those matters simply because they are what the evidence shows. The applicant has not turned up today, and I have already gone through the reasons why I have decided nevertheless to proceed with this matter pursuant to r 13.06(1)(e) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and hear the matter generally.
42. As I have said earlier, I have done so because I am of the view that the applicant has said everything that he could possibly say about the merits of his application both to the AAT and to this Court in his affidavits and his application. Whilst, prima facie, there would seem to be a real doubt as to the veracity of his excuse for filing, because he has not had that opportunity to answer what would seem to be, on the face of it, a misstatement by him, I do not take that aspect any further either for the extension, or against the extension.
43. In my view, though, the futility of the application itself is really the overwhelming factor that would sway the Court to reject the application for extension of time.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.