Kirori v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1935

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. Before the Court is an Application filed on 11 July 2019 for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of a decision of the second respondent (Tribunal) dated 5 June 2019. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (class TU) Student (subclass 500) visa (Visa).

1. The applicant is a citizen of Kenya.
2. On 9 February 2018, the applicant applied for the Visa. The applicant provided a Letter of Offer for a Bachelor of Social Work at Australian Catholic University (ACU) in support of his application.
3. On 7 May 2018, the applicant's enrolment in a Bachelor of Social Work at ACU was cancelled.
4. On 16 May 2018, the Department of Home Affairs, as it then was (Department), sent a letter by way of email to the applicant requesting further information, including that the applicant provide evidence that he was enrolled in a registered course noting that the Confirmation of Enrolment (COE) he had provided previously had been cancelled due to non-payment of fees.
5. The applicant subsequently provided a number of documents to the Department including a statement titled 'Genuine temporary entrant criterion' which provided that he was currently studying a Bachelor of Social Work.
6. On 19 June 2018, the applicant emailed the Department seeking an extension of time in which to provide further documentation relevant to his COE.
7. On 26 June 2018, the Delegate refused to grant the applicant the Visa on the basis that he did not meet the criteria in cl 500.211 of sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The Delegate found that the applicant did not have a valid COE having found that the Bachelor of Social Work course at ACU had been cancelled and that there was no further evidence to indicate that the applicant was in enrolled in any other registered course of study at the time.
8. On 17 July 2018, the applicant applied to the Tribunal for review of the Delegate's decision.
9. On 28 March 2019, the Tribunal emailed the applicant inviting the applicant to attend an in-person hearing on 5 June 2019 at 9.00am QLD time (Hearing Invitation). The Hearing Invitation also sought that the applicant provide within seven days a copy of:

(a) his current COE, or documents that indicate that he is currently enrolled in a course of study as defined in cl 500.511 of sch 2 to the Regulations; and

(b) documents that show his past studies in Australia.

1. On 3 June 2019, the Tribunal reviewed the applicant's PRISMS records which indicated that the applicant was not enrolled in a registered course of study and that the applicant's last registered enrolment was in the Bachelor of Social Work at ACU which was cancelled on 7 May 2018.
2. On 29 May 2019 and 4 June 2019, the Tribunal sent the applicant text messages to his telephone number as provided in his Visa application, reminding him of the hearing listed on 5 June 2019.
3. On 4 June 2019, the applicant telephoned the Tribunal seeking that the hearing be postponed. The Tribunal informed the applicant that any such request would need to be made in writing. The applicant did not make any further contact with the Tribunal either by telephone or via written correspondence.
4. On 5 June 2019, the applicant attended the hearing and gave evidence that he was not enrolled in a registered course of study. At the hearing the applicant sought an adjournment of the matter to enable him to secure enrolment in a registered course. The Tribunal declined to grant this request. At the conclusion of the hearing, the Tribunal made an oral decision affirming the decision of the Delegate to refuse to grant the applicant the Visa.

1. The Tribunal issued its statement of decision and reasons on 16 September 2019 (Tribunal Decision).
2. At paragraphs [1] - [7] of the Tribunal Decision, the Tribunal canvassed the procedural history of the matter.
3. At paragraph [7] of the Tribunal Decision, the Tribunal identified that issue before it was whether the applicant was enrolled in a registered course at the time of its decision pursuant to cl 500.211 of sch 2 of the Regulations.
4. At paragraphs [10] - [11] of the Tribunal Decision, the Tribunal noted the applicant had not provided a COE and that by his own sworn evidence to the Tribunal, the applicant was last enrolled in a Bachelor of Social Work at ACU which had been cancelled due to the non-payment of fees. The Tribunal further noted the applicant's sworn evidence that he was not currently enrolled in any course of study at the time of the hearing. The Tribunal considered the applicant's submissions in regard to his financial difficulties and legal issues but found that these matters were not relevant to the Visa application matter before it.
5. At paragraphs [12] - [14] of the Tribunal Decision, the Tribunal noted that the applicant sought an adjournment in order for him to seek enrolment in a registered course of study. The Tribunal considered the applicant's submissions that he had not seen the hearing invitation sent to him on 28 March 2019 and that he had not received the text message sent to him on 29 May 2019. The Tribunal found that the text message was sent to the same telephone number as the message sent on 4 June 2019, which was received by the applicant and that the applicant had 14 days since the invitation to secure an enrolment in a registered course of study and did not do so. The Tribunal subsequently denied the applicant's request for an adjournment. Ultimately, as the applicant was not enrolled in a course of study, the Tribunal found that he did not satisfy the criteria required by cl 500.211.
6. Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa.

1. The hearing before this Court took place on 10 November 2025.
2. At the hearing the applicant appeared for himself and made an oral application for an adjournment on the grounds that he had not received the materials filed by the Minister and wished to seek legal advice in relation to them. He submitted that at the callover of this matter on 12 March 2025 he requested that the Minister provide him with its material by way of email and it had not done so.
3. The Minister filed an affidavit of service deposing to service of the Court Book and the Minister's Outline of Submissions on the applicant on 14 March 2025 and 16 April 2025, respectively, to the email address contained in the applicant's application. At the hearing the applicant said that this was no longer his email address and he had therefore not received the documents.
4. I declined to grant an adjournment for the following reasons.
5. Firstly, having taken the serious step of filing an application in this Court and providing an email address by which he may be communicated with, it is the applicant's responsibility to ensure that email address is current. This is even more so when the applicant expressly requested the Minister to provide its material to him by email.
6. Secondly, at the callover hearing, orders were made listing the matter for trial on a date to be advised and for the filing of material by the parties, including material to be filed by the Minister by 18 April 2025. The applicant was therefore on notice that the Minister would file material in preparation for trial and the date by which this was to occur. Accordingly, the applicant's failure to take any steps in relation to receipt of that material by 18 April 2025 is difficult to understand.
7. Thirdly, this matter has been on foot for in excess of six years. In my view, the applicant has had more than ample time to seek legal advice if he so wished. Whilst the applicant maintained that he had engaged a lawyer at the commencement of these proceedings, there is no evidence before the Court that the applicant has at any time been represented by lawyer.
8. Fourthly, for the reasons set out below, I do not consider there is any utility in granting an adjournment.
9. The applicant was provided with the Minister's submissions and the matter stood down for half an hour to allow the applicant to read them. Upon the Court resuming, the applicant confirmed he had read the submissions. Where specific matters in the Court Book were referred to by the Minister, these were shown to the applicant for his review.

1. Section 477(1) of the Act requires that an application to this Court be made within 35 days of the date of the migration decision.
2. The Tribunal Decision was made on 5 June 2019. An application for judicial review of that decision in this Court was therefore required to be filed by 10 July 2019. The Application for judicial review was not filed until 11 July 2019.
3. Accordingly, the Application was filed one day after the expiry of the statutory timeframe.

Should the Court be satisfied to make an order extending time?

1. Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an application must be made if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
2. The Act does not specify any criteria which must be satisfied to establish that it is in "the interests of the administration of justice" to grant an extension.
3. The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found that the Court has an obligation "to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice". Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time - although it is noted that this list is not exhaustive:

(1) the extent of the delay and the explanation for it;

(2) any prejudice to the respondent if an extension were granted;

(3) the impact on the applicant if the time was not extended;

(4) the interests of the public at large; and

(5) the merits of the substantive application.

1. In the Application filed 11 July 2019, the applicant specified the following grounds as to why it is necessary in the interests of the administration of justice to extend time, in the following terms (without amendment):
   1. I got to know about my last day of application for Federal Court before 1 day of visa expiry as I got my AAT decision in my Spam folder email.
   2. Later on I created my Federal Court application account online but I didn't get confirmation on the same day to apply for the application.
   3. I am seeking one day extension to lodge an application & continue on my bridging visa A.

1. The delay in filing is very short, being a period of only one day.
2. The applicant says that the delay was due to the Tribunal Decision going to his spam folder and due to difficulties setting up an account on the Court's portal. At the hearing the applicant submitted that due to his family circumstances he was "not 100%" at the time. The applicant's "family circumstances" are those contained in the applicant's ground of review contained in the Application (repeated in the affidavit filed with the Application), which are set out in paragraph [51] below.
3. These matters cannot provide a satisfactory explanation for the delay. The applicant sought review in the Tribunal of the Delegate's decision. It is clearly his responsibility to be aware of communications in relation to that review. Further, the Tribunal made an oral decision on the day of the hearing. The applicant was therefore fully aware that a decision affirming the Delegate's decision had been made on 5 June 2019. As to difficulties setting up an account on the Court's portal, this is something all litigants are required to navigate. It cannot provide a satisfactory explanation for the delay. Finally, while sympathetic to the applicant's family circumstances, there is no probative, objective evidence of either those circumstances or any evidence of how they precluded the applicant from filing within the statutory time frame.
4. This weighs against the grant of an extension of time.
5. Notwithstanding the absence of a satisfactory explanation for the delay, given the very short period of the delay, had I been persuaded that the grounds of review were reasonably arguable, I would have granted an extension of time. However, for the reasons set out below, I do not consider the grounds of review to be reasonably arguable.

1. The Minister properly contends that it would not suffer any particular prejudice, other than as to costs, if an extension of time were granted.
2. However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
3. I assess this as a neutral consideration.

1. There is a public interest in ensuring that decisions of the Executive are made lawfully. The merits of the substantive grounds relied upon by the applicant, which are considered below, will of course be relevant to this. However, it has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15] - [17].
2. As to the impact upon the applicant, if the extension of time is refused then the Tribunal's decision will stand and this is an outcome the applicant does not wish. Although an alternative route of review might be available, under s 476A(3)(a) of the Act the refusal of an explanation for an extension of time forecloses any right of appeal: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [65].
3. Taking both the public interest into account and the impact on the applicant, I assess this as a neutral consideration.

1. While the discretion of the Court is broad, the Court should not permit an application to proceed if it is bound to fail, and should accordingly decline to extend time.
2. The Application provides one ground for judicial review (without amendment):

The Administrative Appeals Tribunal did not provide enough weight to the situation I explained as per my circumstances.

1. The Application particularises the one ground of review with a further statement (without amendment):

I, Gabriel Nagaruiya Kirori, writing this in response to the verdict made by Administrative Appeals Tribunal on 05 June 2019. My student visa (subclass 500) got refused on 26 June 2018 and further decision was affirmed by AAT to not to grant the visa. After a serious contemplation, I believe that there has been a jurisdictional error and the Tribunal has failed to consider a relevant matter that is necessary to be evaluated in my case. Therefore, I have decided to apply to the Federal Circuit Court to reconsider my student visa (subclass 500) refusal which was affirmed by the AAT on 05 June 2019. Considering all the circumstances and conversation I had with the respected Tribunal Member, I am not satisfied with the decision made by the AAT. Therefore, I request to appeal Federal Circuit Court to please reevaluate the decision.

It is evident from the records that I have enrolled in a Bachelor of Social Work at Australian Catholic University. Planning for my career plans I have started my course with enthusiasm and vigor. But my happiness didn't last long as there was a medical emergency in my family back home. I planned my trip to head back to my home country but my parents and cousins convinced me that everything was took care of and I don't have to worry about it. It is one of my cousin's kid with whom I spent most of my time back home with had to undergo surgery as he was struggling with a heart problem. I requested my parents who have been sponsoring for my expenses and studies in Australia to help my cousin financially to cover all the hospital expenses trying to save that little one. The kid got operated twice and survived the journey between life and death. It was very heartbreaking situation for all of us in the family and did our best in everything we could offer. Since all the funds saved for my tuition fee covered the costs of the surgery and treatment expenses for the kid, I am left with no money to pay my tuition fee. I requested the admission team explainign my situation for an extension to make the payment but in vain. However, without being empathetic to my circumstances and situation, they have cancelled my COE and have not provided any minimal time.

Being a family member, I believe it is my responsibility to look after my cousin's kid in times of need and I contributed my part in saving the life of the one I care for. The feelings, relationship and the unconditional love I share as a family and the struggle we have been through to save the little one have not given enough weightage and would like to request Federal Circute Court to reconsider the decision made with empathy.

Morover, I have no intension to stay back in Australia rather than gaining the knowledge and skills which I am truly after. Sticking to mu roots, I believe in leading a satisfying life with my family members where I was born and brought up and, in the lands, where I spent my childhood and with the friends I care for. There is no substitute for the happiness I get when I am with the people I care and who gives me unconditional love. The compassion and affection I get is far more superior than the renumeration I get here or in any foreign country. To accomplish my studies in an international platform and settle well back home is what I truly wish for and request the Federal Circuit Court to reconsider my intensions and thoughts.

My parents appreciates my determination to lead a comfortable and satisfying life back in Kenya which is accomplished easily through my studies in an international recognised education provider in Australia. When I think back, I am certain to say it is with my family's inspiration I am ready to concentrate on my studies and direct myself in a career-orientated path. I am similarly dependable to hold up and bolster my family with respect. It is my privilege to have such a wonderful family who stood by my stand in all my ups and down. As their child, it is my responsibility to look after them and give them my support for the rest of my life.

Accomplishing my commitments in Australia, I wish to head back to my home country to reunite with my friends and family members who meant my world. My strong desire to help my family no matter what the situation is and my commitment and determination towards my own career was not given enough weightage and request the Federal Circuit Court to please reevaluate the decision made by AAT to not to grant the visa.

With respect to laws and conditions, the above-mentioned reasons and circumstances are true to my knowledge and I feel I should be given a change before I return to my home country.

I would like to appeal to Federal Circuit Court to kindly reevaluate my case. I hope I would be given a chance to prove my authenticity and my previous situation. I believe the AAT did not put weightage on my circumstances and previous conditions, and I request for appeal to Federal Circuit Court to reconsider my case so that a right decision will be imposed on my application.

Yours Sincerely

Gabriel Nagaruiya Kirori

1. At the hearing the applicant confirmed that he considered that the Tribunal erred by failing to take into account his personal circumstances and the reasons as to why he was not enrolled in a course of study, most particularly, the fact that the funds for his education had been used for hospital expenses and that he had requested more time from the education provider to pay their fees but that had been declined. He also submitted that had he known he could do so, he would have enrolled in another course.

1. The substance of the applicant's ground of review is that the Tribunal failed to take into account his personal circumstances and the reason why he was not enrolled in a registered course of study.
2. The criteria for a subclass 500 Student Visa were set out in sch 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Clause 500.211(a) required that at the time of the Tribunal Decision, the applicant must have been enrolled in a registered course of study. The applicant's own evidence before the Tribunal was that he was not. He confirmed at the hearing before this Court that he was not enrolled at the time of the Tribunal' decision.
3. The requirement of cl 500.211(a) that an applicant be enrolled in an approved course of study is mandatory and, as such, the Tribunal had no discretion to waive that requirement or to take into account any circumstances, even if they be as the applicant contends, which may have resulted in the applicant not being enrolled: Thummala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 828 at [57]. For completeness, I note that the Tribunal at paragraph [11] refers to the applicant's evidence that financial considerations in his family caused him to be unable to pay is fees and this caused the cancellation of his enrolment.
4. The applicant's ground of review discloses no reasonably arguable error on the Tribunal's behalf.

1. For completeness, should it be contended that the Tribunal's refusal to adjourn the hearing for an unspecified period of time, to allow the applicant to secure enrolment was unreasonable, I reject that contention. The Tribunal's reasons disclose an evident and intelligible basis for the refusal of that request: Minister for Immigration and Citizenship v Li [2013] HCA 18 at [105] As at the hearing date on 5 June 2019 the applicant had not been enrolled in a course of study since 7 May 2018. This had been the reason the Delegate refused to grant the applicant the Visa. The applicant was therefore on notice of the dispositive issue before the Tribunal. Further, the letter inviting the applicant to the hearing was sent on 28 March 2019. In that letter the applicant was requested to provide evidence of enrolment at least seven days before the hearing. In the intervening period of approximately eight weeks, he had not done so.

1. The Application was filed one day outside the statutory timeframe. The Court may only grant an extension of the time within which the Application was to be made, if satisfied such extension is in the interests of the administration of justice.
2. None of the above considerations weigh in favour of the grant of an extension of time. Most significantly, the ground of judicial review discloses no reasonably arguable error on the Tribunal's behalf. Accordingly, I am not satisfied it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review.

1. The Application is therefore dismissed.
2. The Minister seeks an order that the applicant pay its costs in the amount of $4,000. I note that this is below the scale in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and also below the scale now contained in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
3. I shall order accordingly.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.