The application for extension of time and leave to appeal was filed 12 days outside the period prescribed by the Rules. The Minister argues that while the applicant's delay is not significant, it has not been adequately explained.
In her application, the applicant stated that she was self-represented, had no financial capacity to hire a lawyer, was unaware of the appeal procedure and did not understand the time limitation. No explanation was offered in the affidavit accompanying the application to explain the delay in filing.
The Minister submits, and I accept, that in the circumstances of this case, the explanation proffered is inadequate. While self-represented litigants can face challenges, there was little to no evidence of proper steps being taken to protect the applicant's interests. In this respect, a mere failure to obtain legal advice does not, without more, explain the delay (Englezos v Secretary, Department of Social Services[2023] FCA 31 at [38] (Collier J).
[2]
The Minister concedes he would suffer no prejudice by an extension of time. The Minister submits, and I accept, that is not generally sufficient, on its own, to lead to the conclusion that time should be extended ( (1984) 3 FCR 344 at 349; at (Bromwich J)).
Hunter Valley Developments Pty Ltd v Cohen
ARN21 v Minister for Immigration, Citizenship and Multicultural Affairs
Of course, there is also an interest in finality of proceedings (FEH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1512 at [24] (Mortimer J, as her Honour then was)), which must also be taken into account.
[3]
The merits of the proposed appeal of the primary judgment
[4]
The core of the issue, in this case, is the merits of the appeal. Those merits are considered at a reasonably impressionistic level (Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [17]-[18] (Kiefel CJ, Gageler, Keane and Gleeson JJ)).
It is in this context that the applicant has raised four grounds by which she seeks to impugn the reinstatement judgment:
The decision of honourable Court is affected by jurisdictional error
The Honourable Judge Symons did not adapt fair process in making a decision at incorrectly interpreted the law
The Honourable Judge Symons made an error in interpreting the migration regulation and migration PAM.
The Honourable Judge Symons failed to consider that each has its own facts and merits and ought to consider on a case-by-case basis.
I have considered each ground in turn and in doing so, I am conscious of the court's obligations to unrepresented litigants (SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing); NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court)). The principles were conveniently summarised by Moshinsky J in Wahed v Minister for Home Affairs[2019] FCA 247 at [26] as follows (citations omitted):
[5]
Courts have an overriding duty to ensure that a trial is fair to all parties. In the context of an unrepresented litigant, that duty requires the Court to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case ... However, there is no statutory right to legal representation. Nor is there any absolute right to legal representation at common law ... In civil proceedings, procedural fairness does not require that a party be provided with legal representation, no matter how serious the consequences of the proceedings might be ...
[6]
The obligation to ensure a trial is fair does not require the judge to give legal or tactical advice to a self-represented litigant that would compromise the judge's impartiality and be unfair to the opposing party (Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; 270 FCR 335 at [106] (Murphy and Rangiah JJ)).
These principles are particularly relevant when assessing the merits of any proposed arguments on appeal (AYJ22 at [25]).
[7]
The first proposed appeal ground simply asserts jurisdictional error. There are no particulars provided with this ground of appeal and nor were any advanced at the hearing. I am unable to identify any arguable basis for that proposed ground.
[8]
The second proposed ground appears to assert a lack of procedural fairness and an incorrect interpretation of the law. No particulars were provided and none were identified in the course of the hearing. In any event, it is clear that her Honour conducted the hearing with the assistance of the interpreter (PJ[28]), had regard to the applicant's submissions and invited the applicant to expand and elaborate upon the merits of the application. I can detect no basis for an assertion that there was denial of procedural fairness.
To the extent that it is asserted there was an error of law, based on the bare assertion the primary judge "incorrectly interpreted the law", I can see no basis for that assertion. Her Honour carefully considered the relevant principles and I can see no error in their application.
[9]
The third ground alleges an error in the manner in which the primary judge interpreted the regulations and Migration Procedures Advice Manual (PAM). It is not clear what is meant by this ground. The general principles applied by her Honour did not require a detailed analysis of the regulations or the PAM. Her Honour's conclusion at [45] was that:
[10]
In other words, in circumstances where the applicant had failed to produce a copy of a current Confirmation of Enrolment (CoE) or any other document to show that she was currently enrolled in a registered course of study at the time of decision, the applicant was not able to satisfy a mandatory criterion for the grant of the student visa, namely, clause 500.211(a).
[11]
I can see no basis to suggest an error in the approach taken by her Honour at [45]. There is no suggestion that there was evidence which her Honour overlooked and in the circumstances the concern identified by her Honour in [45] was an appropriate one.
[12]
The fourth ground concerns the notion that the primary judge failed to consider the facts and merits of the case. There is no substance to that complaint. Her Honour plainly considered the applicant's individual circumstances appropriately. No particulars have been advanced or otherwise particularised, and no submissions were made in the course of the oral hearing in support of that proposed ground.
[13]
The principles governing the grant of leave to appeal from an interlocutory judgment are well established. Although each case must be considered on its merits, generally an application for the grant of leave must establish (Décor Corporation Pty Ltd v Dart Industries Inc[1991] FCA 655; 33 FCR 397 at 398 (the Court)):
[14]
(1) that in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its reconsideration, and
(2) that substantial injustice would result if leave were refused, supposing the decision to be wrong.
[15]
It may be accepted that substantial injustice would result if leave were refused, supposing the decision were wrong. That is because if the decision below were wrong and the applicant had been deprived the opportunity to put their case, in the context of a migration decision, the consequences could, depending on the situation, be significant.
However, even if the application for leave to appeal were not out of time, I have considered whether it would be appropriate to grant leave to appeal from the interlocutory decision. Because of the lack of merit in the underlying application that I have already explained, I would otherwise reject the application, even if it were made within time.
[16]
It follows from the above analysis that the merits of the proposed appeal are entirely lacking, even making allowances for the applicant being unrepresented. The decision of the primary judge is therefore not attended by sufficient doubt to warrant reconsideration on appeal, and, accordingly, the application for an extension of time and leave to appeal is refused.
The Minister seeks costs. The applicant made submissions in relation to the application for costs, and asked for the opportunity to pay any costs in instalments. That is properly a matter for the Minister. I consider it is appropriate to make an order that the applicant pay the first respondent's costs of the application, to be taxed in default of agreement.
It is also necessary to amend the name of the first and second respondent to reflect the fact the Administrative Appeals Tribunal has been replaced by the Administrative Review Tribunal, and the Minister's title has changed in the time that this proceeding has been on foot.
[17]
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.
Parties
Applicant/Plaintiff:
Kaur
Respondent/Defendant:
Minister for Immigration and Citizenship [2026] FCA 302
Legislation Cited (3)
Court of Australia Act 1976
Court Rules 2011
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Cases Cited (7)
The Minister sought summary dismissal of the judicial review application on the basis that it had no reasonable prospects of success. That application was granted by a Registrar on 23 April 2024.
The applicant sought review of the summary dismissal orders on 9 May 2024. The application was filed out of time and so was treated as an application for an extension of time (PJ[20]). That application was listed for a hearing on 23 May 2024. The applicant did not appear. Attempts were made to telephone her on two occasions on the morning of the hearing (PJ[23]). The matter was called out of court and there was no response from the applicant (PJ[24]). The application was dismissed for non-appearance under rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules). An order that the applicant pay the Minister's costs in the amount of $600 was made.
On 8 June 2024, the applicant sought reinstatement of her Registrar review application and filed an accompanying affidavit in which she said she could not find a private lawyer due to her financial capacity and that the email notifying her of the date of the hearing went to junk mail, and she was not aware of the hearing date.
The reinstatement application was heard on 19 August 2024. The reinstatement application was refused by the primary judge on 22 August 2024. In doing so, her Honour correctly identified the applicable rules and factors relevant to the exercise of power under rule 17.05(2)(a) of the 2021 Rules to reinstate proceedings dismissed for non-appearance (PJ[31], citing MZYEZ v Minister for Immigration and Citizenship[2010] FCA 530 at [7]). Her Honour considered whether there was a reasonable excuse for the applicant's absence from the hearing, the prejudice to the Minister and the likelihood of success. Without being exhaustive, her Honour observed that the applicant had argued that:
The judgment and orders of the primary judge were interlocutory in nature. Leave is therefore required to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (MZXQQ v Minister for Immigration and Citizenship[2008] FCA 250 at [15] (Tracey J)). the primary judgment was pronounced on 22 August 2024. Accordingly, an application for leave to appeal needed to be filed on or before 5 September 2024, being within 14 days (Federal Court Rules 2011 (Cth) (Rules), r 35.13).
On 17 September 2024, the applicant sought an extension of time and leave to appeal from the judgment and orders of the primary judge. That application was supported by an affidavit by the applicant dated 5 September 2024 but filed on 17 September 2024. The affidavit contained little detail, stating only the background to the proceeding and the following conclusory propositions:
The factors relevant to the grant of an extension of time were summarised in AYJ22 v Minister for Immigration and Multicultural Affairs[2025] FCA 510 (AYJ22) at [22] (Hill J) (citing ALM22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 7 at [19] (the Court); Quach v RU [2024] FCAFC 32 at [24]-[25] (the Court)) as follows:
An extension of time will be granted if the Court is satisfied that it is in the interests of justice to grant one.
In assessing the interests of justice, the Court considers factors such as the length of the delay, and the reasons for it; the degree of prejudice to the respondent if an extension were granted; and the merits of the substantive case on appeal, if an extension were granted.
It will often be appropriate to assess the merits of the proposed appeal at a reasonably impressionistic level, although there may be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment (for example, if the delay is lengthy and unexplained): see Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [17]-[18] (Kiefel CJ, Gageler, Keane and Gleeson JJ).