//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] HCA 52
respondent. Application for a constitutional or other writ dismissed with costs.
The High Court did not decide the underlying student-visa entitlement afresh. It considered whether the Federal Court had made a jurisdictional error when it refused more time and leave to appeal. The Court held that ordinary errors by a court are not usually jurisdictional errors, and found no indication that the Federal Court misunderstood its task. It also said that trying to relitigate the hearing and notice issues in the High Court's original jurisdiction could be an abuse of process. The application was dismissed with costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,477 words · generated 03/10/2026
The judgment concerns Sanjeev Kanyan's attempt to obtain constitutional or other writs after his further student visa application was refused and the refusal was affirmed on review. The High Court's reasons were given by Gordon, Gleeson and Beech-Jones JJ. The Court dismissed the application with costs at [22].
6 cited instruments linked from this judgment.
Kanyan, a citizen of India, arrived in Australia on 1 December 2014 as a student-visa holder. He applied for a further student visa on 15 August 2017. A Ministerial delegate refused that application because the delegate was not satisfied that he was “a genuine applicant for entry and stay as a student”, as required by cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) [3].
The Tribunal invited Kanyan to provide written information about his intended course of study and complete a Request for Student Visa Information form [4]. He returned the form on 7 May 2019. Asked whether he had a current Confirmation of Enrolment in a registered course of study, he answered “No”. The form warned that not being enrolled “may be a reason, or a part of the reason,” for affirming the decision [5]. Kanyan also indicated that he consented to the Tribunal deciding the review without a hearing. The form explained that, if he consented, he would not be invited to a hearing and the Tribunal would decide on the information and evidence before it. It also said the Tribunal might consider criteria or issues not previously considered by the primary decision-maker [6].
The Tribunal affirmed the refusal on 25 July 2019, relying on the requirement in cl 500.211 that the applicant be enrolled in a registered course of study [7]. Kanyan sought judicial review in the Circuit Court. His case included complaints that he had not been invited to comment on information he supplied and had not been invited to a hearing. The Circuit Court dismissed the application as not raising an arguable case. Its reasons included that Kanyan had consented to a decision without a hearing, that the relevant statutory information procedure was not enlivened by his response, and that he had notice enrolment was an issue [8].
Because the Circuit Court's dismissal was interlocutory, Kanyan needed leave to appeal and, having filed outside the prescribed time, an extension of time [9]. Abraham J of the Federal Court refused both applications on 27 March 2025 [10]. Her Honour considered the proposed appeal grounds at a “reasonably impressionistic level” and concluded they had little prospect of success, including because Kanyan had been put on notice about enrolment and had consented to a decision without a hearing [12]-[13].
Kanyan then sought certiorari to quash the Federal Court's orders and mandamus requiring a determination according to law [1]. His single ground alleged that the Federal Court had failed to recognise that his proposed grounds were arguable. The High Court rejected that claim and dismissed his application [14], [19], [22].
The central distinction was between an error made by a court while exercising its jurisdiction and a jurisdictional error. The High Court cited Craig v South Australia for the principle that a court ordinarily has authority to decide questions of law and fact within matters it is empowered to determine. A mistake on one of those questions may provide a basis for appeal, but is not ordinarily jurisdictional error [18].
That distinction mattered because Kanyan was not pursuing an ordinary appeal from Abraham J. The judgment records that Abraham J was exercising the Federal Court's appellate jurisdiction as a single judge, and that no appeal lay to the High Court from that judgment under the cited statutory provision [1 n 3]. Kanyan therefore had to establish jurisdictional error to obtain the writ relief he sought [18]-[19].
The High Court examined what Abraham J had done. She recognised that an extension of time and leave to appeal were discretionary decisions, considered relevant factors, and assessed the proposed grounds at a preliminary level. Her task included considering whether the Circuit Court's decision was attended by sufficient doubt to warrant reconsideration [10]-[13]. The High Court found nothing in her reasons indicating that she had misunderstood the nature of that function or the extent of her power [19].
The Court also rejected any suggestion that it was improper to consider the merits of the proposed appeal. The prospects of the proposed grounds were a relevant consideration. Abraham J could conclude that, where those grounds had little prospect of success, granting additional time and leave was not in the interests of justice [19]. This did not amount to a final ruling by the High Court on every possible question about the Tribunal process. It answered the jurisdictional complaint against the Federal Court's decision.
The underlying record also informed the Court's response to Kanyan's request for authoritative guidance. The form asked whether he had current enrolment and expressly warned about the possible consequence of answering no [5]. It also explained the consequences of consenting to a decision without a hearing [6]. The Federal Court had recorded that there was nothing in its materials suggesting Kanyan's consent was ineffective or that he wanted to attend a hearing [11]. The High Court concluded that the lower courts had not failed to address the matters actually pressed before them [20].
Finally, the High Court addressed the possibility that Kanyan was attempting to advance a jurisdictional-error contention concerning issues already litigated below, or which reasonably should have been raised there. It said that pursuing such a contention in the High Court's original jurisdiction would be an abuse of process [21]. This was a procedural reason against reopening the underlying hearing and notice questions through the writ proceeding.
The judgment does not purport to change the statutory requirements for student visas or create a new test for Tribunal hearing rights. It records that cl 500.211 required enrolment in a course of study and refers to the relevant definitions in cl 500.111 and reg 1.03 of the Migration Regulations [7 n 5]. But the High Court's decision was not a fresh determination of whether Kanyan met the visa criteria. It was about the threshold for obtaining writ relief against the Federal Court's refusal of an extension and leave to appeal.
The legal framework applied by the Court was stated through existing authorities. At [18], the Court referred to Craig v South Australia, explaining that ordinary errors of law or fact by a court do not ordinarily amount to jurisdictional error. It also cited Kirk v Industrial Court (NSW) and two High Court transcript authorities in support of that discussion. At [21], it referred to Plaintiff S3/2013 v Minister for Immigration and Citizenship and Tomlinson v Ramsey Food Processing Pty Ltd in connection with abuse of process.
The practical point is that the judgment applies, rather than replaces, those established propositions. A litigant seeking constitutional writs against a court's decision cannot establish jurisdictional error merely by asserting that the court assessed the merits wrongly. The asserted defect must concern the court's understanding of its function or authority, or otherwise satisfy the applicable jurisdictional-error standard. Here, the High Court found no such defect [19].
The judgment also illustrates that proposed appeal merits can be considered when a court decides whether to extend time and grant leave. The Federal Court's preliminary assessment was not treated as an improper substitute for a full appeal. Abraham J asked whether the decision below was attended by sufficient doubt and found the proposed grounds weak [12]-[13]. The High Court held that the Federal Court could take that into account [19].
As to the state after the decision, the supplied judgment gives no account of subsequent appellate treatment. It therefore supports no claim about whether later courts have followed, distinguished or limited Kanyan. Its stated disposition is confined to dismissal of this plaintiff's writ application with costs [22].
At [18], the Court said: “A court may make errors in deciding questions of law or fact, and the decision may therefore be appealable, but those errors are not ordinarily jurisdictional errors.” In plain English, the fact that a court may have made a mistake does not, by itself, show that it acted outside its legal authority. A jurisdictional writ is not a substitute for an appeal on the merits.
At [19], the Court said that nothing in Abraham J's reasons suggested she “misconstrued or misconceived the nature of her function or the extent of the power” she was exercising. In plain English, the High Court found that the Federal Court understood that it was deciding applications for more time and leave to appeal, and approached those applications as discretionary decisions.
Also at [19], the Court said: “There was also no error in Abraham J considering the merits of the proposed appeal as a relevant consideration.” This means a court considering whether to allow a late appeal and grant leave can take account of whether the proposed appeal appears to have substance. The judgment does not say that prospects are the only relevant consideration; it says their consideration was not an error here.
At [20], the Court declined to provide the authoritative guidance Kanyan sought. It explained that the relevant hearing and notice contentions had been before the lower courts and that there had been no failure to address the matters he pressed there. In plain English, the High Court did not treat this writ application as an opportunity to give abstract answers to all the statutory questions listed in Kanyan's submissions.
At [21], the Court said that raising a contention in the High Court's original jurisdiction about an issue already unsuccessfully litigated below, or reasonably required to have been raised there, “would be an abuse of process”. In plain English, a party cannot necessarily use a new proceeding to reopen issues that have already been dealt with through earlier litigation.
The judgment is most directly relevant to a procedural pattern in which a party seeks writs against a court's decision on an extension-of-time or leave application. It addresses the distinction between an alleged error in the court's reasoning and a defect going to the court's jurisdiction. A claim that the judge should have assessed the merits differently will not, without more, establish jurisdictional error under the approach stated at [18]-[19].
It is also relevant where the court below has made a preliminary assessment of proposed appeal grounds. In Kanyan, Abraham J considered the prospects at a “reasonably impressionistic level” [12]. The High Court accepted that the merits could be relevant to the discretionary decisions and found no error in the approach taken [19]. The judgment does not establish a universal numerical or evidentiary threshold for “prospect of success”; it describes the analysis in this particular procedural setting.
A further fact pattern involves a litigant attempting to raise in the High Court's original jurisdiction an issue already litigated below. The Court's abuse-of-process observation is conditional: it applies “[t]o the extent” the plaintiff sought to pursue a contention about an issue raised or determined earlier, or reasonably required to have been raised earlier [21]. The judgment should not be read as deciding every possible application of abuse-of-process principles. Its statement is tied to the course of litigation before it.
The visa facts are relevant context, but the precedent is not a substantive ruling that every student-visa applicant who lacks a current Confirmation of Enrolment must lose a review. The Court records Kanyan's answer, the warning on the form, his consent to a decision without a hearing, and the Tribunal's reliance on the enrolment criterion [5]-[7]. Its decision concerns the later challenge to the Federal Court's procedural ruling, not a general determination of the operation of every provision in ss 359, 359C and 360 of the Migration Act 1958 (Cth).
The supplied judgment contains no subsequent decisions discussing or applying Kanyan. It was delivered on 10 December 2025, and the text provided includes no later treatment. Any statement about later courts following, distinguishing or limiting it would therefore go beyond the available source.
The judgment itself identifies authorities it relied on or referred to. Craig v South Australia is explained as the source of the distinction between ordinary errors and jurisdictional errors [18]. Kirk v Industrial Court (NSW) and two High Court transcript authorities are cited in that discussion [18]. Plaintiff S3/2013 and Tomlinson are cited in relation to abuse of process [21]. The reasons do not describe any of those authorities as having considered the facts of Kanyan's visa process; they support the general propositions for which the Court cites them.
The judgment also discusses the prior proceedings in Kanyan's own matter, including the Circuit Court and Federal Court decisions [8]-[13]. Those are part of the case's procedural history, rather than later treatment of the High Court decision.
The High Court did not decide the underlying statutory questions Kanyan listed about how ss 359, 359C and 360 of the Migration Act interact. Those questions included whether his response to the s 359 request gave rise to a hearing entitlement, what form consent to a decision without a hearing could take, and whether the notice about enrolment sufficiently identified a potentially dispositive issue [15]. The Court concluded that the lower courts had addressed the matters actually advanced in those proceedings and did not provide the broader guidance requested [20].
The judgment also does not give a comprehensive account of when consent to proceed without a hearing may be ineffective. Its discussion is record-specific: there was nothing before the Federal Court to suggest Kanyan's consent was ineffective, and the conclusion that he had declared the form accurate and had not indicated that he wanted a hearing was not challenged [11], [20]. Different evidence or a different procedural record may raise different questions, but the judgment does not decide them.
Nor does the judgment set out a complete checklist for exercising the discretion to extend time or grant leave. It records that Abraham J recognised the powers as discretionary and considered relevant matters, including the proposed appeal's merits [10]-[13]. The High Court's holding is that the approach in this case disclosed no jurisdictional error, not that every extension or leave application must be decided in the same way.
Finally, the Court's abuse-of-process statement is framed around the issues and history of this proceeding [21]. The judgment does not specify every circumstance in which a matter is one that “ought reasonably” to have been raised in an earlier proceeding. The limits of that principle in other procedural settings remain outside the reasons supplied here.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GORDON, GLEESON AND BEECH‑JONES JJ
SANJEEV KANYAN PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS & ORS DEFENDANTS
Kanyan v Minister for Immigration and Multicultural Affairs
[2025] HCA 52
Date of Judgment: 10 December 2025
S63/2025
ORDER
Application for a constitutional or other writ dismissed with costs.
Representation
The plaintiff is represented by Residency Legal
The first defendant is represented by Mills Oakley
Submitting appearances for the second, third and fourth defendants
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Kanyan v Minister for Immigration and Multicultural Affairs
Administrative law – Judicial review – Jurisdictional error – Where application for student visa refused on basis that plaintiff not genuine applicant for entry and stay as student – Where plaintiff informed Tribunal he did not have current Confirmation of Enrolment in registered course of study – Where plaintiff consented to decision being made without hearing – Where Tribunal affirmed refusal decision on basis that plaintiff not enrolled in registered course of study – Where Federal Circuit Court of Australia refused application for judicial review – Whether decision by Federal Court of Australia to refuse extension of time and leave to appeal involved jurisdictional error – Whether abuse of process to contend Tribunal fell into jurisdictional error.
Words and phrases – "abuse of process", "certiorari", "consent", "jurisdictional error", "mandamus", "prospect of success", "reasonably impressionistic level", "registered course of study", "student visa".
Federal Court of Australia Act 1976 (Cth), ss 24, 25, 33.
Migration Act 1958 (Cth), ss 359, 359C, 360.
Federal Circuit Court Rules 2001 (Cth), r 44.12.
High Court Rules 2004 (Cth), r 25.09.3.
Migration Regulations 1994 (Cth), r 1.03, Sch 2 cll 500.111, 500.211, 500.212.
GORDON, GLEESON AND BEECH-JONES JJ. The plaintiff seeks, by his application for a constitutional or other writ, a writ of certiorari quashing the orders of the second defendant, the Federal Court of Australia (Abraham J), and a writ of mandamus compelling the "defendant"1 to determine the plaintiff's application according to law.2 Each of the second defendant, the third defendant (the Administrative Appeals Tribunal, now the Administrative Review Tribunal) and the fourth defendant (the Federal Circuit Court of Australia, now the Federal Circuit and Family Court of Australia (Division 2)) filed a submitting appearance. On 29 October 2025, the application was referred by Gordon J for determination by a Full Court.3 The parties consented to the application being determined on the papers.
For the reasons that follow, the plaintiff's application for a constitutional or other writ should be dismissed.
The plaintiff is a citizen of India who arrived in Australia on 1 December 2014 as the holder of a student visa. On 15 August 2017, he applied for a further student visa. That application was refused by a delegate of the first defendant, the Minister for Immigration and Multicultural Affairs, on the basis that the plaintiff was not "a genuine applicant for entry and stay as a student", as required by cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth).
On 6 October 2017, the plaintiff applied to the then Administrative Appeals Tribunal for review of the delegate's decision, having appointed a registered migration agent as his representative. On 5 April 2019, the plaintiff was invited, pursuant to s 359(2) of the Migration Act 1958 (Cth), to provide information in writing about the course of study he was intending to undertake and to complete a Request for Student Visa Information form. He was notified that it was a requirement for the grant of the student visa that he be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student.
On 7 May 2019, the plaintiff provided the completed form to the Tribunal. In response to the question, "Does the [plaintiff] have a current Confirmation of Enrolment (CoE) in a registered course of study?", the plaintiff answered "No". Under that answer, the form stated that "[n]ot being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review".
In response to the question, "Do you ... consent to the Tribunal deciding the review without a hearing?", the plaintiff responded that he consented to the Tribunal deciding the review without a hearing. Immediately below that question, the form stated:
"Note: If you consent to us deciding your review without a hearing:
On 25 July 2019, the Tribunal affirmed the delegate's decision on the basis that the plaintiff was not enrolled in a registered course of study as required by cl 500.211 of Sch 2 to the Migration Regulations.4
The plaintiff sought judicial review of the Tribunal's decision in the then Federal Circuit Court of Australia ("the Circuit Court"). That review application was based, in substance, on the fact that the plaintiff had not been invited to comment on the information he provided in his s 359(2) response and the fact that he had not been invited to attend a hearing before the Tribunal. That application was heard on 5 May 2021. The Circuit Court (Judge Street) was not satisfied that the grounds in the plaintiff's review application raised an arguable case and dismissed the application pursuant to r 44.12(1)(a) of the then Federal Circuit Court Rules 2001 (Cth).5 The Circuit Court dismissed the application for three reasons.6 First, the Tribunal was not required to invite the plaintiff to attend a hearing in circumstances where the plaintiff had consented to the Tribunal deciding the application without a hearing. Second, the Tribunal's obligations under s 359A(1) of the Migration Act7 were not enlivened by the information provided by the plaintiff in response to the s 359(2) invitation to provide information. Third, the plaintiff was on notice of the dispositive issue on review, as the Tribunal had requested evidence of his enrolment in a registered course.
As dismissal of the review application by the Circuit Court under r 44.12(1)(a) of the Federal Circuit Court Rules was interlocutory in nature,8 the plaintiff required leave to appeal to the Federal Court.9 The plaintiff's application for leave to appeal to the Federal Court was filed two days outside the prescribed period and he therefore also required an extension of time.
On 27 March 2025, Abraham J dismissed the plaintiff's application for an extension of time and leave to appeal from the judgment of the Circuit Court.10 Abraham J observed that, although the power to extend time in which to appeal and the power to grant leave to appeal are unfettered, the authorities identify several matters which may bear upon the exercise of those discretions.
The plaintiff advanced a single ground in support of his application for a constitutional or other writ: that the Federal Court made "an error in the judgment by failing to accept that the grounds [were] arguable, at an impressionistic level, despite the questions raised by the plaintiff in the matter, as listed below, that lacked substantial answers in the case law or ... clearly established authorities as sought".
Three matters were then listed by the plaintiff as lacking "definitive authority on the subject matter":
"i. Can the same document, i.e. Student Visa Information Form, or the same sections: s 359 (in combination with 359C and 360); grant or entitle the plaintiff a hearing on one hand and [on] the other exhaust or deny the same right to a hearing? If so, which one should prevail? In the alternative, can the plaintiff's hearing entitlement be denied based on their Response under s 359, when s 360 and s 359C otherwise guarantee[] the right to a hearing upon such response? Does not the plaintiff submitting information requested under s 359 make the plaintiff entitled to a hearing under s 360 and s 359C; if so, what power [does] the Tribunal [have] to take that away?
ii. Can the consent required under s 360(2)(b) to make a decision without hearing (waiving the requirement that the Tribunal must invite the plaintiff to appear before it under s 360) be given by selecting a drop-down answer sent in a document in compliance with s 359 request? Does such consent [need to] be given after the actual hearing invitation by the Tribunal, or be initiated by the plaintiff before hearing invitation? If the Court considers the s 359 response as informed consent, was it for the review of GTE [scil, "Genuine Temporary Entrant" criteria] on file (as indicated by the note below the consent), or was it a broader consent to affirm the decision on any other criteria or new dispositive issue?
iii. Can a dispositive issue arise only after the Tribunal member assigned to the matter has considered the file and/or documents that the Tribunal has? Can the Tribunal, without the member's consideration and determination, generalize dispositive issues in advance and raise it as a note in any request (rather than a formal notice) by any officer of the Tribunal; if so, is it sufficient to discharge the Tribunal of its obligation to inform the applicant of any dispositive issue in the matter?"
The plaintiff submitted that Abraham J had a statutory duty to determine, first, whether there existed any arguable grounds based on the numerous questions raised in the grounds and, second, if her Honour found otherwise, to provide reasons for her decision including reference to any relevant case authority where similar matters were considered and where other applicants or plaintiffs were unsuccessful. The plaintiff submitted that, in the absence of such reasoning and authority, it could not reasonably be accepted that her Honour discharged her duty to assess the merits of the grounds or the questions posed and to make a determination.
The plaintiff accepted that an assessment by Abraham J of the merits of the proposed grounds of review at a "reasonably impressionistic level" was consistent with authority. The plaintiff's complaint was that her Honour's judgment failed to discharge the responsibility or properly exercise the judicial function "of determining whether, at an impressionistic level, the grounds were so hopeless to warrant dismissal of the matter, or whether, in the interest[s] of [the] administration of justice, there was a sufficient basis to grant an extension of time to allow fuller consideration of the arguments for and against each [of the] grounds of review at a later stage, particularly in ... light of [the] factual circumstances presented to her".
The plaintiff's application faces a number of difficulties. To be entitled to the relief sought – a writ of certiorari and a writ of mandamus – the plaintiff must demonstrate jurisdictional error by the Federal Court. As explained in Craig v South Australia,18 "the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine". A court may make errors in deciding questions of law or fact, and the decision may therefore be appealable, but those errors are not ordinarily jurisdictional errors.19
The plaintiff has not identified any jurisdictional error by the Federal Court such as could entitle him to the relief he seeks. Nothing in Abraham J's reasons for decision suggests that her Honour misconstrued or misconceived the nature of her function or the extent of the power her Honour was exercising, being the correction of errors of the type that might amount to jurisdictional error.20 As has been explained, her Honour observed correctly that she had a discretion to grant both an extension of time and leave to appeal and that there were a range of factors that were generally relevant to the exercise of those discretions. Her Honour's approach was orthodox, and no jurisdictional error has been identified, let alone established. There was also no error in Abraham J considering the merits of the proposed appeal as a relevant consideration and then deciding that, where the proposed grounds had no or little prospect of success, it was not in the interests of justice to grant an extension of time or leave to appeal.
Assumed to be the second defendant. ↩
Abraham J was exercising the appellate jurisdiction of the Federal Court, as a single Judge, in determining an application for leave to appeal to that Court: see Federal Court of Australia Act 1976 (Cth), s 25(2)(a). Consequently, no appeal could be brought to this Court from the judgment of Abraham J: s 33(4B)(a). ↩
Pursuant to High Court Rules 2004 (Cth), r 25.09.3(d). ↩
Clause 500.211(a), the only criterion relevant to this proceeding, requires that the applicant be "enrolled in a course of study", which is relevantly defined to mean "a full‑time registered course": Migration Regulations, cl 500.111 para (d) of the definition of "course of study", and see Migration Regulations, r 1.03 definition of "registered course". ↩
Kanyan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 931 at [6]-[7]. ↩
Kanyan [2021] FCCA 931 at [2(16)-(17), (20)-(22)]; Kanyan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 261 at [5]. ↩
Section 359A(1) sets out the Tribunal's obligations in respect of any information it considers would be the reason, or a part of the reason, for affirming the decision under review, including that the Tribunal must give the applicant clear particulars of that information, and invite the applicant to comment on or respond to it. ↩
Federal Circuit Court Rules, r 44.12(2). ↩
Kanyan
Minister for Immigration and Multicultural Affairs [2025] HCA 52
(1995) 184 CLR 163
(2010) 239 CLR 531
(2013) 87 ALJR 676
(2015) 256 CLR 507
Application for a constitutional or other writ dismissed with costs.
After describing the contents of the plaintiff's written submissions filed in the Federal Court, her Honour identified that the basis of the plaintiff's submissions before the Circuit Court and the Federal Court was that the Tribunal was required to invite him to comment on the information he had provided in his s 359(2) response that he was not enrolled in a registered course of study, and to invite him to a hearing, despite him having consented to the Tribunal making a decision without doing so.12 Her Honour observed that there was nothing in the materials or the evidence before the Federal Court to suggest that the plaintiff's consent was not effective. Her Honour recorded that the plaintiff "had declared the information in the form was correct and there was nothing before the [Federal] Court to suggest he wanted to attend a hearing. That conclusion is not challenged".13
Abraham J then observed that the merits of the proposed application are a relevant consideration and that it is not in the interests of justice to grant an extension of time, or leave to appeal, where there is little or no prospect of success.14 Against that background, her Honour then proceeded to address the merits of the plaintiff's proposed grounds of appeal at a "reasonably impressionistic level" and to inquire whether each ground was "sufficiently arguable" or had "reasonable prospects of success".15 The question her Honour posed was whether the decision of the Circuit Court was attended by sufficient doubt to warrant it being reconsidered.16
Her Honour concluded that the proposed appeal grounds had little prospect of success.17 Consistent with the findings of the Circuit Court, the plaintiff was on notice, upon receiving the Request for Student Visa Information form, that cl 500.211 (the requirement to be enrolled in a course of study) was an issue before the Tribunal. Moreover, her Honour concluded that the plaintiff's submissions did not identify any reasonably arguable error in the reasoning of the Circuit Court in dismissing the plaintiff's application to that Court on the basis that the plaintiff had consented to the Tribunal deciding his review application without a hearing. Abraham J held that the decision of the Circuit Court was not attended by sufficient doubt to warrant the grant of leave to appeal or an extension of time.
The plaintiff's submission that the Federal Court, and now this Court, should provide authoritative guidance on the questions posed by the plaintiff is misconceived. First, as has been explained, the basis of the plaintiff's submissions before the lower courts was that the Tribunal was required to invite him to comment on the information he provided in his s 359(2) response (namely, that he was not enrolled in a registered course of study) and to invite him to a hearing, despite him having consented to the Tribunal making a decision without doing so. In respect of the former issue, Abraham J referred to the Circuit Court's conclusion that the plaintiff was on notice, from at least the date of the s 359(2) invitation and provision of the Request for Student Visa Information form, that satisfaction of cl 500.211 was an issue on the review. In respect of the latter issue, as Abraham J observed, there was nothing in the materials or the evidence before the Federal Court to suggest that the plaintiff's consent was not effective and, indeed, there was no challenge to the conclusion that the plaintiff had "declared the information in the form was correct and there was nothing before the [Federal] Court to suggest he wanted to attend a hearing". In short, there was no failure to address any matter pressed by the plaintiff in the lower courts.
Second, to the extent that the plaintiff now seeks to have this Court address a contention that the Tribunal fell into jurisdictional error having regard to an issue raised or determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, it would be an abuse of process for the plaintiff to do so in the original jurisdiction of this Court, when he had already unsuccessfully litigated that issue in the Circuit Court and the Federal Court.21
Federal Court of Australia Act 1976 (Cth), s 24(1A). ↩
Kanyan [2025] FCA 261. ↩
Kanyan [2025] FCA 261 at [6]-[7]. ↩
Kanyan [2025] FCA 261 at [10]. ↩
Kanyan [2025] FCA 261 at [10]. ↩
Kanyan [2025] FCA 261 at [11]-[12]. ↩
Kanyan [2025] FCA 261 at [13]. ↩
Kanyan [2025] FCA 261 at [14]. ↩
Kanyan [2025] FCA 261 at [20]. ↩
(1995) 184 CLR 163 at 179. See also Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 572 [67]; AUK15 v Minister for Immigration and Border Protection [2016] HCATrans 36 at lines 1514-1565; Plaintiff S254/2018 v The Honourable Justice McKerracher [2019] HCATrans 212 at lines 28-33. ↩
Craig (1995) 184 CLR 163 at 179-180. ↩
Craig (1995) 184 CLR 163 at 176-180, 186. ↩
See, eg, Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678 [11]-[14]; 297 ALR 560 at 562-563; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518-519 [25]-[26]. ↩