Mohammed v Minister for Immigration and Citizenship [2025] FedCFamC2G 1702

1. This decision concerns an application for judicial review of a tribunal decision to affirm a decision to refuse the Applicant a partner visa.
2. The original application to the Court was summarily dismissed by a Registrar for lack of reasonable prospects of success.
3. The Applicant now seeks review of the Registrar's decision.
4. These reasons explain that the application was filed outside of the proscribed time, which time will not be extended and why the substantive application can not, in any event, succeed on its merit and would otherwise be summarily dismissed.

1. The Applicant is a citizen of India.
2. On 11 January 2013, the Applicant applied for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) (Subclass 801) visa based on his relationship with his sponsor, a Ms Kayleen Mayer.
3. The matter has an unfortunate history of initial refusal by a delegate of the First Respondent, affirmation of that refusal by the Tribunal, and a second refusal decision by a delegate which decision was required to be renotified. On review, that renotified decision was remitted by another Judge of the Federal Circuit Court of Australia (as this Court then was).
4. On remittal, on 5 March 2021, the Tribunal decided to dismiss the application for non-appearance which decision was affirmed on 22 March 2021.
5. On 16 April 2021, the Applicant filed the present application for judicial review of the Tribunal's affirming decision dated 22 March 2021. The originating application was accompanied by an affidavit of the Applicant which annexed the Tribunal's 22 March 2021 decision and identified 4 points under the heading "grounds of application", expressed as follows:
   1. The Tribunal dismissed my application based on non appearance.
   2. The Tribunal denied me natural justice and fairness by making a decision while I replied to the Tribunal and insisted that I need time because I was sick and not ready to attend a hearing and the Tribunal decided not to grant me extension of time even though I provided medical evidence and I told the Tribunal that I don't have Medicare and I do not have money and also I am depressed and the Tribunal failed to postpone the hearing.
   3. I told the Tribunal about my situation that my life has been hell because of this issue and I conclude that under my current circumstances the Tribunal denied me the requested postponement.
   4. I draw the honourable Court's attention to previous appearance before the Melbourne Federal Circuit Court as well as Melbourne Federal Court during which time Their Honours of the Courts made a decision in my favour and I now ask the honourable Court to refer my case to a pro bono lawyer to help me because I am very down.

1. On 27 April 2021, the First Respondent filed a response.
2. On 3 November 2021, the First Respondent filed a court book.
3. On 27 March 2025, the First Respondent filed an amended response by which they sought that the application be dismissed with costs for no reasonable prospects of success.
4. On 25 June 2025, the First Respondent filed an affidavit of a solicitor and submissions. The solicitor's affidavit of 25 June 2025 deposed to and annexed records of:

(a) an invitation from the Tribunal dated 19 February 2021 which invitation had invited the Applicant to attend a hearing on 5 March 2021 date and enclosed a fact sheet;

(b) the dismissal decision of 5 March 2021; and

(c) notification of the dismissal decision dated 22 March 2021 which included advice about reinstatement along with a fact sheet about dismissal applications.

1. On 22 July 2025, the Applicant filed an affidavit annexing written submissions, the dismissal decision dated 5 March 2021, photos, emails and medical documentation.
2. On 14 August 2025, the matter proceeded to hearing before a Judicial Registrar of the Court. Both parties attended the hearing by electronic means. The Applicant represented himself and was provided with assistance of a Hindi interpreter. The First Respondent was represented by a solicitor advocate. The Registrar made orders dismissing the Applicants' substantive application pursuant to the then in force r.13.13(a) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) (2021 Rules) (Registrar's decision) and the Applicant was ordered to pay the First Respondent's costs in the amount of $4,189.38 (the then scale amount for proceedings concluded at an interlocutory stage).
3. On 29 August 2025, the Applicant filed this application for review of the Registrar's decision (Registrar review application).
4. On 3 September 2025, procedural orders were made fixing the Registrar review application for hearing before the Court as presently constituted. The parties were invited to file any additional affidavits and written submissions in support of their respective cases.
5. On 11 September 2025, the Applicant sent various documents regarding the Applicant's health condition(s) by email to chambers and the First Respondent filed an outline of written submissions.
6. On 12 September 2025, the Registrar review application proceeded to hearing before the Court as presently constituted. The Applicant represented himself and was provided with assistance of a Hindi interpreter. The First Respondent was represented by a solicitor advocate. At hearing, the Applicant sought to confirm that the Court had received the documents provided regarding his heart condition, clarifying that he did not say he was unfit to participate in the proceedings on that day but rather they were relevant to the Registrar review application. The matter was adjourned to afford the Applicant further opportunity to provide any evidence he intended to rely on to the Court and for the parties to consider the issue of whether the Registrar review application was filed outside of the prescribed timeframe.
7. On 14 and 15 September 2025, the Applicant sent an affidavit to chambers (by email) which annexed documents previously sent by email on 11 September 2025. On 16 September 2025, my chambers confirmed (by email) that the Court would receive the documents, subject to the First Respondent's objection as to irrelevance, which was yet to be determined. By that correspondence it was reiterated that, at the next hearing date, the Court would seek to be addressed about whether the Registrar review application was filed after the proscribed time pursuant to rr.2.05 and 21.02 of the 2021 Rules (as in force at the time of filing), or whether the recently amended Rules ought be applied.

1. On 18 September 2025, the adjourned hearing was listed but not able to proceed due to an interpreter absence - notwithstanding the endeavours of the Court to arrange an interpreter on that occasion.
2. On 30 September 2025, the matter proceeded to final hearing before the Court as presently constituted. The Applicant represented himself and was provided with the assistance of a Hindi interpreter. The First Respondent was represented by Counsel.

1. A party to proceedings in which a delegate has exercised any of the powers of the Court under s.254 may apply to the Court for review of the exercise of that power within the time prescribed by the Rules of Court or within any further time allowed in accordance with the Rules of Court: s.256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).

1. The application for review of the Registrar decision was made on 29 August 2025, at which time the 2021 Rules were in operation and an application for review of the exercise of a power by a Registrar must be made within 7 days: r.21.02(1) of the 2021 Rules. In the period since and before the application came on for hearing, the 2021 Rules were superseded by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 Rules). Under the 2025 Rules, the application for review of the exercise of a power by a Registrar must be made within 21 days after the day on which the power is exercised: r.3.06(1) of the 2025 Rules.
2. There are no specific transitional provisions however there is an overarching discretion to modify or dispense with the 2025 Rules if, in a particular case, the 2025 Rules are insufficient or inappropriate: r.1.06 of the 2025 Rules. In interpreting and applying the practice and procedure provisions the Court is required to best promote the overarching purpose; to facilitate the just resolution of disputes according to law and as quickly and inexpensively as possible - and specifically, the objectives of just determination, efficient use of judicial and administrative resources and disposal of overall caseload, disposal of all proceedings in a timely manner and the resolution of disputes at proportionate cost to the importance and complexity: s.190 FCFCOA Act.
3. The First Respondent submitted that the time limit to be applied is that which existed at the time the application was filed (the 2021 Rules), which submission was founded on the principle of the presumption against retrospectivity: citing s.7(2) of the Acts Interpretation Act 1901 (Cth) and Maxwell v Murphy (1957) 96 CLR 26 (Dixon CJ, Williams, Kitto, Taylor and Fullagar JJ) at 267-268. I accept this submission and agree that the operation of r.21.02(1) of the 2021 Rules affects a right, privilege, obligation or liability acquired, accrued or incurred on the part of an applicant.
4. Thus, in the present case, I am of the view that the overarching purpose is best promoted by the application of the 2021 Rules as in force at the time this application was filed. I so conclude in the knowledge that, at all relevant times, s.256 of the FCFCOA Act and the 2021 Rules included provision for the Court to allow further time for the Registrar review application to be made - subject to the considerations outlined below. The unfortunate but unusual consequence in terms of the present matter will be considered as relevant to the question of whether to exercise the discretion to extend the time for filing in the following reasons.

Should the time for filing the application be extended?

1. The Registrar's decision was made on 14 August 2025. An application for review was due to be filed by 21 August 2025. The present application for review of the Registrar's decision was not attempted to be lodged until 28 August 2025 (and not accepted for filing until 29 August 2025).
2. Accordingly, at the earliest, the Registrar review application before the Court was lodged 7 days after the expiry of the proscribed timeframe. There is no particular criteria to be applied in deciding whether to allow further time for a late application to be filed.
3. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) (Katoa) at [12], the majority explained the relevant considerations for the Court when applying the provision (albeit non-exhaustive):

Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

See also: Katoa at [35], [39] and [62]; SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 (Foster J) [46]-[48].

1. Although it is often appropriate to assess merits at a "reasonably impressionistic level" or at a "threshold level" in terms of whether the proposed ground(s) "enjoy[s] reasonable prospects of success", the High Court in Katoa held that it is within the Court's jurisdiction to have regard to the merits of a ground of review as it considers appropriate in the circumstances of the case: [17]-[19]. For example, at [18]:

... if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.

1. I turn then to consider whether to allow further time for the Registrar review application to be filed having regard to the established principles.

Duration, explanation and nature of the delay

1. The duration of the delay is 7 days, which is relatively short albeit twice the time that was proscribed by the 2021 Rules as in force at the time of filing.
2. As the First Respondent's representative acknowledged, the unfortunate and unusual circumstance of the introduction of a longer period for making such application within just 2 days of filing is a relevant factor. That is, if the Applicant had waited another 2 days to lodge this Registrar review application and the 2025 Rules in force at the time of hearing applied to the Applicant's case, then the application was not required to be filed until 4 September 2025 and the Applicant would not require an extension of time.
3. At hearing, the Applicant explained that the reason for his delay in filing the Registrar review application was due to his medical condition which meant that he was unable to attend the Court's Registry in person to file documents by himself and that he had to have someone else come with him. Further, the Applicant stated that his documentation required signatures, including that of a "GP", which took several days to obtain.
4. These factors weigh in favour of an extension of time being granted.

1. The First Respondent was understood to properly accept that, other than cost, there is no particular prejudice to them. This is a relevant factor but not of itself determinative: BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 (Beach J) at [18].
2. There is a public interest in ensuring that decisions of the executive are made lawfully. Relevant to this will be the merits of the substantive grounds of review, which are considered further below.
3. And, as has been recognised in the established authorities, there is also a public interest in the finality of administrative decisions which in my view is a strong consideration in the present case: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 (McHugh J) at [15] -[17].

1. The merit of the substantive application is also a relevant factor.
2. The question of whether the substantive application ought to be summarily dismissed is required to be considered on a de novo basis.
3. The cases make clear that, for the purposes of an extension of time application, the Court is concerned with whether the grounds available to the applicant are reasonably arguable.
4. The first, third and fourth points under the heading "grounds of application" do not allege jurisdictional error. They may be understood as submissions.
5. The second point under the heading "grounds of application" is properly understood as an allegation of jurisdictional error on account of the Tribunal's decision to dismiss the application which is said to constitute a denial of natural justice and procedural fairness. The Applicant particularised this ground by reference to his request that the Tribunal postpone the hearing because of sickness. The Applicant orally elaborated in terms that the Tribunal hearing was during times of the global COVID-19 pandemic, the Applicant was ill and had emailed the Tribunal his doctor's certificate and contacted them about his inability to present himself over a 3 month period. Further, that the Tribunal notification of hearing was sent at too short notice, he needed 3 months' notice to get to the doctor and gather and prepare documents. In the same period, his brother became ill and passed away. The Applicant also emphasised the number of proceedings and hearings he has attended and that he had never missed a hearing or failed to present himself.
6. The relevant documents before the Court disclose that the Tribunal had invited the Applicant to attend a hearing before it in order to respond to information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The relevant hearing invitation sent 19 February 2021 included information about attending a Tribunal hearing and the consequences of non-attendance including dismissal. That notification also invited the Applicant to elect an alternative to appearing in person at a hearing and included a fact sheet with information about how to request an adjournment. The Tribunal's fact sheet emphasised that an adjournment would only be granted if the Tribunal were satisfied of a "very good reason".
7. The uncontentious facts are that the Tribunal endeavoured to contact the Applicant by telephone on the day of and day prior to the 5 March 2021 hearing. Also on 4 March 2021, the Applicant sent an email to the Tribunal in which he stated that he was not in a situation to attend at that moment and sought a fair time to get physically and mentally recovered. The Applicant expressed in that email that, if the Tribunal still wanted him attend, then he was happy to do so after 3 months' time.
8. The decision record of 5 March 2021 discloses that the relevant adjournment request (being the Applicant's request for an adjournment of the 5 March 2021 Tribunal hearing) was considered by the Tribunal Member who considered the factors raised by the Applicant as relevant to the discretion, at paragraphs [19] to [25]. The dismissal decision was then confirmed by further Tribunal decision of 22 March 2021, as the Tribunal was obliged to do in circumstances where the Applicant had not sought reinstatement within 14 days of the dismissal statement as required by s.362B(1B) of the Migration Act 1958 (Cth).
9. On the material before the Court, I am unable to discern a denial of procedural fairness or natural justice in the Tribunal's approach to dismissal of the application on account of the Applicant's non-appearance at the hearing on 5 March 2021. This is a factor that weighs strongly against the allowance of further time in which the application was to be made.

1. In weighing the relevant factors outlined above, I am not satisfied that the allowance of further time for the Registrar review application to be made is desirable nor in the interests of the administration of justice. The Registrar review application must be refused.
2. For completeness even if the application were made within the proscribed time, as it is devoid of merit I would be minded to affirm the Registrar's decision and dismiss the application on grounds of no reasonable prospects of success.
3. As the Registrar review application was filed 29 August 2025, I am satisfied that it is reasonable and appropriate to order costs in the amount at Schedule 2 of the 2025 Rules where the work was performed after 1 September 2025. Accordingly, in addition to order 2 of the Registrar's orders made on 14 August 2025, the Applicant will be ordered to pay the First Respondent's costs and disbursements of and incidental to the review application, fixed in the sum of $4,553.02.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.