Kaur v Minister for Immigration and Citizenship [2026] FedCFamC2G 45

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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. Ms Mandeep Kaur, the Applicant, made a judicial review application as to a decision of the Administrative Appeals Tribunal to refuse to grant her a student visa. The Applicant discontinued her judicial review application by a Notice of Discontinuance filed on 2 September 2025. The Applicant needed, and was granted, leave under r. 23.02(2)(c) to discontinue her proceeding.
2. The Applicant now applies for orders to withdraw or set aside the Notice of Discontinuance she filed and that her judicial review application be reinstated.
3. I will dismiss her application to withdraw the Notice of Discontinuance. My reasons follow.

1. At the hearing, the Applicant made an oral adjournment application. The Minister opposed the adjournment. I ruled that I would not allow the adjournment and said that I would include my reasons for refusing the adjournment in my reasons for judgment.
2. The Applicant submitted that she was a victim of domestic violence, had experienced depression and anxiety. Domestic violence is a scourge in our community. I had no evidence, however, of the Applicant's personal circumstances as to domestic violence or any evidence (medical or otherwise) as to her anxiety or depression. To adjourn a hearing for medical reasons an applicant "must establish why it is or how it is that an [applicant] is unable to attend the hearing" (Singh v Minister for Immigration and Border Protection [2017] FCA 216, [13]). Because the Applicant did not explain in her adjournment application how it is and why it is she was unable to participate in the hearing, she did not make good any grounds for an adjournment for medical reasons.
3. The Applicant also applied for an adjournment to have additional time to hire a lawyer. This matter has been in the court lists since 2020. The Applicant filed her Notice of Discontinuance in September 2025. She has had ample time to take necessary steps to obtain a lawyer before the hearing today. An adjournment of her matter would necessarily delays the hearing of other litigants whose trials will have to be rescheduled. There is no right to legal representation in matters of this kind (SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234, [24]).
4. For these reasons, I refused the Applicant's adjournment application

SHOULD THE APPLICANT BE PERMITTED TO WITHDRAW HER NOTICE OF DISCONTINUANCE?

1. The Applicant made an affidavit on 25 September 2025 in support of her application which explained the circumstances of the filing of her Notice of Discontinuance (Ex A1). The Applicant deposed ([4], [8]):
   1. ... On 2 September 2025, during a call over hearing with the Registrar, I mistakenly filed a Notice of Discontinuance. I did so out of lack of knowledge and misunderstanding the effect of such a filing. I did not intend to abandon my case and I respectfully ask the Court to reinstate my application.

...

1. I respectfully say that it would be in the interests of justice for this proceeding to be reinstated, as my discontinuance was filed by mistake, and I have a genuine and ongoing interest in pursuing my application.

1. The Applicant submits that she understood that filing her Notice of Discontinuance was an "administrative or procedural requirement."
2. The Applicant appeared today with the assistance of an interpreter in the Punjabi - English languages. Nonetheless, as the Minister submitted (and I accept) the purpose and character of the Notice of Discontinuance is clear from the standard form. The Applicant completed and signed the Notice. The Applicant did not explain what factor or (or factors) led to any misunderstanding. She asserts a misunderstanding but does not explain how the understanding arose. She does not identify any evidentiary basis (reasonable or otherwise) for her misunderstanding about the Notice of Discontinuance and its consequences.

1. Rule 23.02 of the rules of this court - titled "Discontinuance" - governs the filing of a Notice of Discontinuance. It is as follows:

(1) A party may discontinue a proceeding in whole or in part by filing a notice of discontinuance in the approved form.

(2) The party may file the notice of discontinuance:

....

(c) with the leave of the Court - at any time.

1. As noted, the Registrar granted the Applicant leave to file the Notice of Discontinuance and made an order accordingly on 3 September 2025.
2. In Moussa v Minister for Immigration and Border Protection [2015] FCA 1280 at [13] Perram J noted that in the Federal Court "there is no specific rule ... that permits a notice of discontinuance to be withdrawn". So too there is no specific rule in this Court that permits a Notice of Discontinuance to be withdrawn.

1. In Moussa, Perram J held that the Federal Court had power to permit the withdrawal of a notice of Discontinuance in appropriate circumstances. In this court s. 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) is the source of my power to permit the withdrawal of the Notice of Discontinuance and reinstate a proceeding as I consider "appropriate".
2. In Chen v Monash University (2016) 244 FCR 424; [2016] FCAFC 66 the Full Court was dealing with the reinstatement of an appeal following the filing of a notice of discontinuance of the appeal, but the Full Court's statement of relevant principles apply equally in the current context. In Chen at [47] the court said, "while it is neither appropriate nor necessary to enumerate" the circumstances in which an implied power to reinstate a proceeding may be exercised once a notice of discontinuance is filed to assert that the court has a general power to reinstate a discontinued application would be "inconsistent with the principle of finality" (Chen, [46]-[47]). The Full Court also held that the "prospects of success of the proposed appeal may also be taken into account in [the] final exercise" of any discretion to permit withdrawal of a notice of discontinuance. In Chen, the Court held that the appellant's case did not have "reasonable prospects of success" (Chen, [150]). The Full Court did not permit withdrawal of the notice of discontinuance.
3. In Moussa at [13] Perram J distilled four relevant principles governing the exercise of any discretion to permit the withdrawal of a notice of discontinuance:

13 Four principles may be distilled from the authorities referred to above:

1. A notice of discontinuance may be set aside where it is shown that its filing constituted an abuse of process.

2. It may also be set aside where its filing was procured by fraud or duress.

1. There is a jurisdiction to set such a notice aside to avoid substantial injustice.
2. None of these jurisdictions is engaged where a party knowingly and voluntarily files a notice of discontinuance.

Application of those principles to the current case

1. The Applicant has not submitted that there was any abuse of process (Moussa, principle 1) or "fraud or duress" (Moussa, principle 2) which would persuade me to exercise my discretion to permit the withdrawal of the Notice of Discontinuance.
2. The Applicant submits that she filed the Notice of Discontinuance mistakenly because of a "lack of knowledge and misunderstanding the effect of such a filing." She does not allege any third party contributed to her filing of the Notice. The fact that the Applicant now says she filed the Notice mistakenly and because of a lack of knowledge does not detract from her having filed the notice "knowingly and voluntarily" (Moussa, principle 4).
3. In applications for an extension of time to institute proceedings, it is well established that ignorance of legal requirements is insufficient to explain a late filing (see, i.e., SZNYE v Minister for Immigration and Citizenship [2010] FCA 500, [8]). The Applicant has not explained how a lack of legal knowledge caused her to file the Notice. Accepting that a lack of legal knowledge meant she genuinely believed the Notice was an administrative or procedural requirement, reasoning by analogy from the extension of time cases, the fact that the Applicant filed the Notice because of her lack of legal knowledge is not sufficient reason for me to exercise my discretion to permit her to withdraw the Notice.
4. In addition - as is explained below - the Applicant has not persuaded me that she would suffer a substantial injustice if I refused to exercise my discretion to permit her to withdraw the Notice (Moussa, principle 3). None of the grounds of the Applicant's judicial review application has reasonable prospects of success. They are accurately characterised as "untenable" or "groundless" (Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28, [59]). No substantial injustice arises from refusing to permit the withdrawal of the Notice to enable the further pursuit of a case which does not have reasonable prospects of success.
5. The Applicant has not persuaded me to exercise any discretion I may have in accordance with the principles Perram J distilled in Moussa to permit her to withdraw the Notice.

The Applicant's correspondence with the Tribunal before the Tribunal hearing

1. In explaining my reasons that none of the Applicant's grounds has reasonable prospects of success, I note the following documents which were before the Tribunal when it made its decision on 9 May 2020 to refuse the Applicant a student visa.
2. On 23 April 2020, the Tribunal provided the Applicant with an "invitation to provide information". In part, its letter read:

You are invited to provide the following information in writing:

• As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa that:

1. you be enrolled in a registered course of study; and

1. while holding a student visa you have sufficient funds available to meet your costs and expenses during your intended stay in Australia; and

...

• Accordingly, you will need to provide sufficient information to satisfy us that you meet all of these visa requirements

1. On 7 May 2020, the Applicant's authorised representative responded to the Tribunal:
   • The client has no enrolment in a registered course of study in Australia currently. She does not study in Australia anymore.
   • The client does not have financial capacity evidence - Genuine access to funds.

Hence, the client does not satisfy the relevant criteria of the student visa (class TU

subclass 500).

....

She stated that she is not interested in attending AAT hearings in the future regarding her case.

[Emphasis added]

1. Among the attachments to the authorised representative's letter to the Tribunal, the authorised representative attached a letter dated 6 May 2020 the Applicant herself had signed in which she wrote to the Tribunal:

As per the request by the tribunal, I cannot provide the following key documents.

1. Current CoEs: I am not enrolled with any education provider to study in Australia.

2. Evidence of financial capacity: I do not have sufficient funds available evidence as I do not study in Australia currently.

Please make the decision based on the evidence and information before you.

[Emphasis added]

1. On 6 May 2020, the Applicant also signed a statutory declaration that she had received advice that her application for a student visa had "no prospects of success" (which was a further attachment to the authorised representative's letter to the Tribunal. The Applicant's statutory declaration referred to cl. 2.17 of the (then) Migration Agents Code of Conduct which provided that an agent must advise a client if a visa application was "grossly unfounded".

1. Ground 1 is that the Tribunal misinterpreted s. 359A of the Act and did not consider that the Applicant had previously completed courses of study in Australia. As noted, a mandatory criterion for the grant of a visa under cl. 500.211 was that the applicant "is enrolled in a course of study." Whatever her study history, at the time of the Tribunal decision, the Applicant was -by her own admission - not currently enrolled in a course of study which mandated the Tribunal's refusal of the visa. The Applicant's reference to s. 359A is misconceived. Under s. 359A(4)(b), the section does not apply to information "that the applicant gave for the purpose of the application for review". The Applicant herself provided the information that she was not enrolled in a course of study that mandated the Tribunal's refusal to grant the visa. Ground 1 lacks merit.
2. Ground 2 refers to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 153; [2006] HCA 63. In SZBEL, the High Court said that as a matter of procedural fairness in the absence of steps taken by the Tribunal to notify an applicant to the contrary, an applicant is entitled to assume that the issues the delegate considered dispositive were the issues that arose in the decision under review (SZBEL, [35]-[36]). In its invitation to the Applicant to give information under s. 359(2), the Tribunal expressly requested information about her current enrolment in a course of study. The Tribunal expressly put the Applicant on notice as to the dispositive issues as to her application in accordance with any requirements distilled from SZBEL. Ground 2 lacks merit.
3. Ground 3 is that the Tribunal failed to give the Applicant a "fair opportunity to submit her verbal and written submission". The Applicant - via her representative - had expressly stated:

She stated that she is not interested in attending AAT hearings in the future regarding her case.

1. The Applicant's argument that she was denied a fair opportunity to submit her verbal and written submissions has no reasonable prospects of success in circumstances in which she responded to the invitation to provide information, by writing to the Tribunal to advise it "that she [was] not interested in attending any Tribunal hearing". The Tribunal's obligation was to provide a reasonable opportunity to the Applicant to present evidence and arguments. The Tribunal could not ensure the Applicant took advantage of that reasonable opportunity.
2. Ground 4 alleges that the Tribunal failed to consider "that each case have its own facts and merits and ought to be considered on case by case basis". The Applicant has not set out how the Tribunal erred in its duty to have regard to the facts and merits of her individual case. Contrary to her submission, the Tribunal had regard to the facts and merits of her individual case in its finding that it had to refuse to grant a student visa because (TD, [17]):

From the information provided to the Tribunal by the applicant the Tribunal finds that the applicant is not currently enrolled in a course of study. Therefore cl.500.211 is not met by the applicant.

1. I repeat that because her underlying judicial review application does not have reasonable prospects of success no substantial injustice will arise by refusing the Applicant's application to withdraw the Notice of Discontinuance.

1. Notwithstanding the Applicant's submission that she lacked the financial means to meet any costs order; costs ought to follow the event. I will make two orders as to costs. Under r. 25.14(3) the Applicant is to pay the First Respondent's costs consequential on the filing of the Notice of Discontinuance fixed in the amount of $4,360, an order which, as the Minister noted, is less than the scale amount under Schedule 2, Part 3, Division 2, item 3 of the Rules. In addition, I will order that that the Applicant pay the First Respondent's costs as to her unsuccessful application to withdraw the Notice of Discontinuance the subject of these reasons fixed in the amount of $1,200.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.