Pokharel v Minister for Immigration and Citizenship [2026] FedCFamC2G 121

1. This is an unusual case. The Court in its migration jurisdiction regularly reviews decisions to refuse applications for visas. In this case, the applicants seek an extension of time in which to seek judicial review of a decision of a delegate of the Minister of Home Affairs (delegate**)** to grant them visas. While at first glance it may be puzzling as to why applicants would wish to seek relief from a positive grant, the answer lies in what happened after the visa grant. The applicants claim that they did not know the visas were granted, and then the visas expired.
2. The applicants seek relief on the basis that were I to find jurisdictional error, and as a result remit the matter to the Department of Home Affairs (Department) for reconsideration, their applications would revert to a 'pending' status and this would enable them to provide the documents necessary to meet the criteria for the visas.
3. The application is made on the premise that a court should exercise its discretion to grant relief where there is jurisdictional error in the decision of a primary decision-maker, notwithstanding that the decision was in favour of the applicant. The respondent (the Minister) opposes the application for extension of time.
4. The decision of the delegate to grant the applicants the Student (Temporary) (Class TU) (Subclass 500) visas (student visas) was made on 15 December 2022.
5. The application in this Court was filed on 17 November 2023 under s 477(2) of the Migration Act 1958 (Cth) (Act). The application was filed 302 days after the expiry of the requisite 35-day filing period for an application to this Court.
6. A preliminary question for this Court is whether it has jurisdiction to hear the matter, a question which is answered affirmatively, for reasons set out later in this judgment.
7. The central question though for the Court, is whether it is necessary in the interests of administration of justice to grant the extension of time. While the authorities are useful in offering up a number of factors for consideration as to whether to grant an extension, I have exercised some caution in adopting the principles in these cases, given they generally relate to visa refusals.
8. After consideration of whether an extension of time is necessary in the interests of the administration of justice, I conclude that the extension of time should not be granted after considering the length of the delay, the reasons provided, the prejudice to the Minister, the merits of the substantive case, public interest factors and the nature of the case (in particular that it was a visa grant).

1. The first applicant is a citizen of Nepal (Court Book (CB) 39). He arrived in Australia in 2017 as the holder of a student visa (first student visa) (CB 1, 34). The second applicant is his wife (CB 33).
2. Since his arrival in Australia, the first applicant has completed two master's degrees in accounting. He completed the first degree at Kaplan Business School on 13 March 2018 and the second at Holmes Institute on 15 November 2020 (CB 11).
3. On 2 March 2021, the first applicant applied to the Department for the second Student (Temporary) (Class TU) (Subclass 500) visa (the student visa) (CB 1-19). The second applicant applied as a dependent on his visa. The applicants nominated a migration agent as their authorised recipient in the application (CB 7). The first applicant proposed to study a Diploma of Leadership and Management at Kingsford International Institute from 17 May 2021 to 15 May 2022 (the Diploma) (CB 34 and 69). Attached to the visa application were copies of the first applicant's academic records from his studies in Nepal (CB 21-28) and Australia (CB 29-32). The application also contained details of a Confirmation of Enrolment (CoE).
4. On 15 May 2021, the Department sent the applicants a request for more information (CB 51-54), by way of email to their nominated migration agent (CB 50). The attached 'Request Detail' form identified the following checklist items (CB 56):
   • Financial capacity
   • Evidence of course fees
   • Evidence of annual income
   • Relationship to the source of funds
   • Immigration Health Examinations (for example: chest x-ray, medical examinations and/or blood tests as specific in the Health Examinations List)
5. In response, the applicants provided supporting documents, including a CoE identifying that the first applicant's enrolment period for the Diploma was 17 May 2021 to 15 May 2022 (CB 69). The first applicant also provided an undated letter to the Department in which he provided details of study background (CB 70-71). In the letter he acknowledged that he was initially enrolled in the Diploma from 12 April 2021, but deferred to the May intake.
6. On 15 December 2022, the Department granted the applicants the student visas. On the same day, the Department notified the applicants of the decision by way of email to their migration agent (CB 83-93).
7. On 1 March 2023, the student visas ceased (CB 96-97).

1. The applicants applied to this Court for an extension of time to seek judicial review in an application filed on 17 November 2023.
2. Following standard timetabling orders by a Registrar of this Court, the matter was docketed to me on 6 August 2025 and the matter listed for hearing.
3. On 29 October 2025, the applicants appeared before this Court represented by Mr Jones of Counsel instructed by Residency Legal. Mr Reilly of Counsel appeared for the Minister instructed by HWLE Lawyers. A Nepali interpreter assisted the Court.
4. As part of their application, the applicants filed two affidavits deposed on 8 November 2023. The first affidavit attached a copy of the delegate's decision. The second affidavit had no attachments but contained an explanation by the first applicant for the delay in lodging the application for judicial review. These affidavits were read in court.
5. The following documents were before the Court - the initiating application for judicial review, the supporting affidavits of the first applicant filed 8 November 2023, a Court Book (numbering 99 pages and marked as Exhibit 1A) filed 18 July 2025, written submissions of the first applicant filed on 30 September 2025, and written submissions of the Minister filed on 15 October 2025.

1. A threshold question is the jurisdiction of this Court. Courts have the duty and authority to consider and decide whether a claim brought before the court is within jurisdiction_: New South Wales v Kable_ (2013) 252 CLR 118 at [31].
2. Section 476(2)(a) of the Act provides that this Court has no jurisdiction in relation to a primary decision, such as the delegate's decision.
3. This Court is not a court of general jurisdiction. The Court has jurisdiction conferred on it by the Commonwealth in accordance with the Constitution. Section 476(1) of the Act provides that, subject to s 476, the Court has the same original jurisdiction in relation to migration decisions as the High Court under s 75(v) of the Australian Constitution (Cth) (the Constitution).
4. The expression 'migration decision' is defined in s 5 of the Act to mean a privative clause decision (defined in s 474 of the Act), a purported privative clause decision (defined in s 5E of the Act) or a non-privative clause decision (s 474(6) of the Act).
5. A privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, under this Act: s 474(2).
6. Section 476(4) provides that 'primary decision' means a privative clause decision or purported privative clause decision that is reviewable under Part 5 or Part 7. The decision of the delegate to grant the visa was not reviewable under Part 5 or 7 of the Act by the Tribunal because it was not a Part 5 reviewable decision under s 338(2) of the Act, as it was not a decision to refuse a visa. The delegate's decision could not be reviewed by the Tribunal as it was not a 'primary decision' for the purposes of s 476(2)(a) of the Act and therefore was not a privative clause decision excluded from the jurisdiction of the Court.
7. While this could be seen to be the end of the matter in relation to jurisdiction, owing to the singular nature of this case, I raised with Counsel the issue of whether there was a 'matter' as that word is employed in s 75(v) of the Constitution. Section 75(v) provides that the High Court has jurisdiction over 'matters' in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth (and this follows through to this Court by means of s 476(1) of the Act). In most cases before the Court, this would not require consideration, but in the case before me, a decision of a primary decision-maker was favourable to the applicants, and delivered an advantage, whether or not they took up this advantage, so the question arises as to the controversy in play.
8. The key authority as to the concept of a 'matter' remains In re Judiciary And Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 where the High Court at 265 adopted this definition of 'matter':

...there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the court.

1. More recently, in AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 278 CLR 512 (AZC20) Kiefel CJ, Gordon and Steward JJ observed that 'matter' has two elements: 'the subject matter itself as defined by reference to the heads of jurisdiction...and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy': AZC20 at [31]-[32].
2. As to the second element, their Honours observed at [31] - [32] that:

...exceptional categories aside, there can be no 'matter' within the meaning of Ch III of the Constitution unless "there is some immediate, right, duty or liability to be established by the determination of the Court" in the administration of a law and unless the determination can result in the Court granting relief which both quells a controversy between parties and is available at the suit of the party seeking relief.

1. In the case before me, the parties were in agreement, and I accept, that the right in issue was the applicant's entitlement to have the visa determined on a legally and factually correct basis (which would permit him to lodge a fresh visa application) and the controversy was as to whether the extension should be granted.
2. The reasoning is sound and in accordance with the authorities referred to above. I am satisfied that the valid determination of the visa application is the right or duty and that the controversy relates to the interlocutory application for extension of time.
3. I conclude that this Court has jurisdiction to hear the matter.

CONSIDERATION OF THE EXTENSION OF TIME APPLICATION

1. Section 477 of the Act provides the time limit which applies to applications for judicial review of decisions in respect of which this Court has jurisdiction and the basis upon which it may be extended. At the time of the Department's decision, the provision relevantly provided:

S 477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)

(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:

(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.

(3) In this section:

date of the migration decision means:

(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 - the date of the written decision under that subsection; or

(b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5 - the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7 - the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or

(ca) in the case of a migration decision made by the Immigration Assessment Authority - the date of the written statement under subsection 473EA(1); or

(d) in any other case - the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

...

Lodgement of application for judicial review of the delegate's decision

1. As the delegate's decision was made on 15 December 2022, the time to apply for judicial review expired on 19 January 2023 (35 days from the delegate's decision: s 477(1) of the Act)
2. The application for review was not lodged by the applicants until 17 November 2023 which was 302 days after the prescribed time as set out in s 477(1) of the Act.
3. The applicants have applied for extension of time pursuant to s 477(2) of the Act.

1. The first limb in s 477(2)(a) of the Act is whether an application has been made to the Court in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order extending time.
2. In the application filed 17 November 2023, the applicants advanced the following grounds for extension of time:
   1. In the interests of the administration of justice the Applicant seeks an extension of time.
   2. The Applicant was not aware that his visa was granted and believed that his visa application was pending.
   3. The Applicant has only recently become aware that his visa was granted and has since expired.
   4. The Applicant believes that he would be severely prejudiced if his application for extension of time was unsuccessful.
3. I am satisfied that an application has been made to the Court in writing specifying why the applicants consider that it is necessary in the interests of the administration of justice to make the order extending time.

Necessary in the interests of the administration of justice

1. The second limb of s 477(2)(b) provides that the Court can grant an extension of time for the filing of an application if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
2. The legislation does not prescribe or confine what factors a court should consider to determine whether extension of time is necessary in the interests of the administration of justice, pursuant to s 477(2) of the Act (see SZTES v Minister for Immigration and Border Protection [2015] FCA 719 per Wigney J). Courts commonly take into consideration principles such as the length of the delay, whether there is an adequate explanation for the delay, any prejudice to the Minister and the merits of the proposed substantive application: see, for example: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 (SZRIQ) per Foster J at [46]-[48].
3. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 (Katoa) the majority of the High Court held at [12] that:

(a) the focus in considering whether to grant the extension of time is not on the interests of the applicant, but on the broader interests of the administration of justice;

(b) the court can look at a myriad of facts and circumstances; and

(c) 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.

1. Section 477(1) of the Act requires that an application to this Court be made within 35 days of the date of the decision.
2. The application for review was not lodged by the applicant until 17 November 2023 which was 302 days after the prescribed deadline as set out in s 477(1) of the Act.
3. This is a significant delay. It is almost a year outside the timeframe set by the Act.

1. In the Affidavit of the first applicant deposed on 8 November 2023 containing submissions, he stated the following:
   1. I was completely unaware of the fact that my student visa was granted and thought that my visa application was still pending.
   2. Because I didn't know that my visa was granted I also didn't know that it had expired.
   3. Recently my wife attempted to commence her studies and it was only then that I came to realise that my visa was granted and has since expired.
   4. This has happened because I have lost access to my mobile phone that has been linked to my email address which was part of the 2-step authentication system. I wasn't receiving any emails about my visa or anything else for at least a year.
   5. The reason for the delay in my application for judicial review was that I have only recently become aware that my visa was granted and has expired. Before this time I still thought that my visa application was still pending.
2. Mr Jones, Counsel for the applicants, submitted that it was not unusual for an applicant to 'wait and see' instead of being proactive to find out the result of a visa application, as Department delays are not uncommon. He contended that the first applicant has not been untruthful about his lack of knowledge but was incurious and unaware (Tp 21.30-36).
3. At the hearing, Mr Reilly for the Minister cross-examined the first applicant. The applicant confirmed that he had been in Australia since 2017 and had completed two master's degrees in accounting (Tp 6.18-21). He applied for a Diploma of Leadership and Management in 2021. Mr Reilly asked the applicant why he was still in the country, when in his visa application (CB 13) he declared that 'applicant will return to Nepal upon completion of his study' (Tp 8.19-24). The applicant said that he would return (Tp 8.26-30). Mr Reilly put to him that neither he nor his wife were planning to return to Nepal, as suggested in his letter to the delegate (CB 70-71) (Tp 8.36-39). The applicant said that he was planning to return and just wanted to 'finish that leadership skill' (Tp 8.43). The first applicant explained that after finishing his master's degree, he was lacking in leadership skills, so he enrolled to improve these skills. He said that he did not complete the course because he had some 'mental and family issues', during the COVID pandemic (Tp 8.26-30).
4. The first applicant confirmed that his CoE was cancelled on 11 March 2022. He said that he was unaware of this and did not inform the Department (Tp 7.9-8.17).
5. Mr Reilly asked the first applicant how he did not have access to a mobile telephone for an entire year. The first applicant responded that he lost his telephone in June 2022 which meant that he could not access his email. He said that he was completely unaware of the emails sent by the agent, college or Department. Mr Reilly asked him whether he was curious to know the outcome of his application for the student visa for the leadership course. He said that he was, but thought the visa was still pending. He acceded that he 'could have' asked his agent (Tp 14.36-39). Asked if he could have checked his visa status online, he said 'I didn't know that one before' (Tp 9.47-10.1). Asked again whether he could have checked with the agent, he said that he thought the visa was pending.
6. The first applicant told the Court that after withdrawing from the course in March 2022 he and his wife did 'nothing' because they did not have work rights. He said that his wife called him in tears in February or March 2023 to tell him that their visas had been granted and had already expired. She had also been planning to study. He said that he wanted to finish his course.
7. The first applicant stated that he did not continue studying while his visa application was pending because he was 'mentally unstable'. He said that he did get a new mobile telephone and a new email address in June 2023. He used a new number as previously the number was under his friend's name. He said that he did not seek out information about his visa application because he had lost his mobile telephone and because he was mentally unstable.
8. Counsel for the Minister submitted:
   • that the delay was lengthy and the first applicant's explanation was 'wanting in several respects';
   • the decision granting the visas was sent by the Department to the address of the authorised recipient provided by the applicants (CB 50);
   • the first applicant did not explain why he could not have obtained a new mobile telephone for a whole year, or what steps he took to rectify not being able to receive emails, or why he did not ask his agent or look online;
   • the Affidavit of the first applicant does not explain why the first applicant has not returned to Nepal after the conclusion of his Diploma of Leadership and Management Course on 15 May 2022 which he said was his intention (CB 70-71) and this means he was 'not entirely truthful'; and
   • the first applicant's CoE had been cancelled, and he had an obligation to tell the delegate about this but did not do so. This demonstrated lack of veracity.
9. I am not satisfied that the evidence establishes that the first applicant has been untruthful. Although he stated in Department documents that he would return to Nepal at the completion of course, when in fact he has remained in Australia, it may have been that circumstances changed, as claimed by him.
10. However, I do accept, as contended by Mr Reilly, that the applicants were the authors of their own misfortune. The Department complied with the notification requirements in the legislation. The delegate's decision was sent to the address of the authorised recipient (CB 83) nominated by the applicants (CB 7; 50) in compliance with s 494D(1) of the Act. It is important to note that this address was selected by the applicants as the address for notifications by the Department. As pointed out by Counsel for the Minister, the first applicant had evidently received communications from the authorised recipient in the past (CB 50).
11. The explanation for the delay provided by the applicants, that the first applicant had lost his mobile telephone in June 2022 and lost access to emails for about a year and for this reason did not know about the visa grant, is unsatisfactory for two reasons.
12. Firstly, if the first applicant was aware that he had lost access to communications, it is unclear why he did not contact the Department or the agent to notify them of the situation so that he could be contacted in a different manner. There is an obligation on applicants to notify the Department of change of circumstances (s 104 of the Act).
13. Furthermore, the Department advised the applicants that they should be notified of changes in contact details. In the letter from the Department acknowledging the visa application dated 2 March 2021, the Department states:

You need to tell us about any changes to your details as soon as possibles. These changes may affect any answer to a question in your application form including your name, passport, contact details, address and family members... You must do this in writing and can use Form 1022..." (CB 49).

1. Secondly, it is reasonable to assume and expect that applicants would take steps to remain informed about their visa status, given the importance of that status to their future places of residence, education and employment. The applicants were represented by a migration agent, and it can be presumed therefore they were aware of the importance of time limits and keeping in contact. It is not clear why the applicants did not remain in contact with the Department online, or with the agent, to ascertain the visa status. It is unclear why the agent did not keep in contact with them.
2. Ignorance of time limits is generally not a satisfactory explanation for a failure to comply with them: see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 per Foster J at [38]. Similarly, in my view, ignorance about the notification of the grant of a visa, was not a satisfactory explanation in circumstances where the ignorance came about because of the applicants' own conduct.
3. The extent of the delay and the lack of reasonable explanation for it weighs against exercising the discretion to grant an extension of time in which to lodge the application for judicial review.

Prejudice to the respondent if an extension were granted

1. The Minister has claimed that there would be prejudice to the Minister if an extension of time was granted.
2. Mr Reilly argued that if the applicants had sought review of the delegate's decision within time, by 19 January 2023, there would have been a compelling argument available to the Minister that any relief should be withheld in the court's discretion as the applicants could have applied for another student visa and relief would have no useful purpose: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [28].
3. Mr Reilly noted that the applicants can no longer apply for a student visa from within Australia because the first applicant's last substantive visa expired on 1 March 2023 such that an application would have had to be made within 28 days thereafter (Migration Regulations 1994 (Cth) (the Regulations), Sch 1, item 1222(4)).
4. There is some merit in this argument, given the court's general reluctance to grant discretionary relief where alternative remedies were or could have been available. However, with the benefit of hindsight we know that it is unlikely that the applicants would have sought relief at that time, as the visas were granted, providing benefit to them. I therefore do not attribute weight to this form of prejudice.
5. There is nonetheless some general prejudice inherent in delayed judicial challenges as delays impede the efficient administration of justice. There is a public interest in the timely and effective disposal of litigation, particularly in the area of migration law as courts are encountering significant backlogs. However, apart from the usual costs associated with litigating an out-of-time application, I am not persuaded there is any specific or substantive prejudice to the Minister.
6. Accordingly, this factor is considered neutrally in the weighing of the factors in consideration of whether to grant an extension of time.

1. In considering whether a proposed appeal has merit, a court will usually do so at a 'reasonably impressionistic level' by way of assessing whether the proposed grounds are 'arguable', 'reasonably arguable' or 'sufficiently arguable' to warrant the grant of extension of time: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP) at [62]-[63], and approved by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110.
2. Where there is a significant delay, as in this case, then a higher standard is required. At [18] of Katoa, their Honours said that:

'if the delay is lengthy and unexplained, the applicant may be required to show that the case is strong or even exceptional'

1. This is such a case. The delay is lengthy and the explanation unsatisfactory, such that there needs to be a strong or exceptional case for the discretion to be exercised.
2. The applicants have advanced the following ground of jurisdictional error:

1. The Respondent (Minister) made a jurisdictional error by granting the Applicant a visa.

1. They provided particulars of this ground as follows:

a. The Respondent granted the Applicant the visa on 15 December 2022.

b. The Applicant was required to be enrolled in a course of study at the time the visa was granted under cl 500.211(a) in Sch 2 to the Migration Regulations 1994 (Cth);

c. The Applicant was not enrolled in a course of study when the visa was granted as his then most recent certificate of enrolment had a course end date of 15 May 2022 and had been cancelled on 11 March 2022;

d. If the grant of the visa were quashed by his Honourable Court, the Applicant's application for the visa would revert to pending, enabling the Applicant to submit a fresh certificate of enrolment in support of the grant of the visa;

e. The grant, as opposed to refusal, of the visa was not reviewable by the Administrative Appeals Tribunal under s 338(2) of the Migration Act 1958 (Cth) (Act), with the result that the present proceeding was not excluded from the jurisdiction of this Honourable Court by s 476(2)(a) when read with s 476(4) of the Act.

1. The delegate was required to consider whether the applicant met the legislative criteria for a Student (Class TU) (Subclass 500) visa. Section 29(1) of the Act gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. The Regulations prescribe the criteria for classes of visas: s 31(1) and (3) of the Act.
2. The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or the Regulations: s 65(1)(a)(ii) of the Act.
3. The criteria for the visa applied for by the applicants are set out in cl 500.2 of Schedule 2 to the Regulations. Clause 500.211 of Schedule 2 to the Regulations contains the primary criteria for the visa which must be met at the time a decision is made on the application: see note at cl 500.2 of Schedule 2 to the Regulations.
4. Clause 500.211 provides that:

One of the following applies:

(a) the applicant is enrolled in a course of study;

(b)-(d) not relevant to this case.

1. On 2 March 2021, the first applicant applied to the Department for the student visas (CB 1-19). The application attached copies of the first applicant's academic records from his studies in Nepal (CB 21-28) and Australia (CB 29-32). The application also contained the following details (reproduced without alteration):

Confirmation of enrolment

Does the applicant hold a Confirmation of Enrolment (CoE) for any intended course of study in Australia?

Yes

Confirmation of enrolment details

CoE code: C2761997

1. On 15 May 2021, the Department sent the applicants a request for more information (CB 51-54). In response, the applicants provided a number of supporting documents. These documents included a CoE (code C52EC041) identifying that the first applicant's enrolment period for the Diploma was 17 May 2021 to 15 May 2022 (CB 69).
2. On 15 December 2022, the delegate granted the applicants the student visas. On the same day, the Department notified the applicants of the decision by way of email to their migration agent (CB 84-93).
3. The first applicant was required to be enrolled in a course of study at the time the visa was granted: cl 500.211(a) to Schedule 2 to the Regulations. The first applicant was not enrolled in a course of study when the visa was granted, as the most recent CoE had a course end date of 15 May 2022, and it had been cancelled on 11 March 2022.
4. It is clear from these circumstances that the delegate granted the applicants the visas although the first applicant did not meet cl 500.211(1) of Schedule 2 to the Regulations.
5. Factual errors by primary decision-makers do not always amount to jurisdictional error: CRU18 v Minister for Home Affairs [2020] FCAFC 129 at [29]- [31]. Wigney, Jackson and Snaden JJ held that 'more' than an error must be demonstrated. Their Honours observed that there could be many reasons an error could be 'beyond the jurisdictional authority of its maker' [31] including failure to take account of mandatory considerations or unreasonableness. Similar principles were outlined in the reasoning in BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 per Allsop CJ, Collier and Colvin JJ. Their Honours noted (at [13]) that a finding of fact involving an error might constitute a jurisdictional error if for example it was shown to be irrational or unreasonable or lacking in an intelligible justification.
6. In DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353, Gleeson J relied (at [28]) upon comments of Jagot J delivering separate reasons in Rawson Finances Pty Ltd v Federal Commission of Taxation [2013] FCAFC 26. Jagot J said (at [84]):

the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula "some probative material or logical grounds" does not convert questions of fact into questions of law.

1. In my view it is not necessary to spend too much time on how to characterise the error in this case. Suffice it to say that there was a clear error amounting to an error of law, which was central to the grant. The plurality in Hossain v Minister for Immigration and Border Protection [1928] ArgusLawRp 97; (2018) 35 ALR 1 at [25] held that jurisdictional error is the expression not only of the existence of error but of the gravity of the error in that a statute is ordinarily to be incorporated as incorporating a threshold of materiality in the event of non-compliance (see also Mouflih v Minister for Home Affairs [2019] FFCA 1744 at [28]). The error was material to the outcome of the Minister's decision as the existence of the CoE was a mandatory criterion.
2. I conclude that there is a strong substantive case which weighs significantly towards the grant of the extension of time for lodgement of the extension of time.

1. I have found in the preceding paragraphs that there are factors which weigh against granting the extension (the delay and the lack of reasonable explanation for the delay) and factors which weigh in favour of granting the extension (the merits of the case).
2. Section 477(2) of the Act provides that the Court may extend the 35-day period if satisfied that it is necessary in the administration of justice. The High Court said in Katoa that:

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 (Katoa, [12]).

1. There is no restriction as to what factors to consider in determining what is necessary in the administration of justice. I have considered carefully the observations by the High Court in Katoa at [12] that the court's power to extend time is not focused on the interests of the applicant, but rather on the broader interests of the administration of justice. The High Court observed in Katoa at [11], that the text of equivalent provisions (relevant to the Federal Court), reveals a legislative intention to restrict exercise of the jurisdiction by placing a 35 day limit on applications and ameliorating injustice that might result by allowing that time to be extended only where a judge has reached a state of satisfaction that it is in the interests of the administration of justice to extend (per Kiefel CJ, Gageler, Keane and Gleeson JJ at [11]).
2. These principles suggest that I must consider the broader interests of the administration of justice, and whether the extension of time is needed for that purpose. I have considered the relevant public interest factors below.

1. The function of the Court in judicial review is to ensure that bodies exercising public law functions act lawfully and fairly and do not abuse their powers. It has long been this Court's role to ensure that writs are issued where a tribunal decision has been inflicted with jurisdictional error. In Enkhbat v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 308, Judge McCabe made the following comments about the critical importance of quality decision-making at the Tribunal (at [25]:

A high-standard of decision-making and decision-writing is essential if the Tribunal is to retain public confidence and achieve its unique mission in our system of administrative law.

While the Tribunal is importantly a means for ensuring individual justice, it is also a tool of good government that is intended to improve the quality of government decision-making. The Tribunal goes about that mission by modelling good (in particular, objective) decision making behaviour. To put it another way, Tribunal decision-making establishes norms and provides guidance to decisionmakers on how to proceed in the particular case, and in relevantly similar cases in the future. In that sense, decision-writing can be understood as a form of advocacy in which the Tribunal contends for a solution to a practical or policy problem that persuades the losing party, the bureaucracy, the wider community, and the Court upon review. The bureaucracy is educated by Tribunal decisions, even when the primary decision-maker's decision is affirmed. The public that deals with government also benefits from that predictability. While not every case the Tribunal decides has precedent value, a reputation for good decision-making must be jealously guarded so the Tribunal's authority is intact when required.

1. Judge McCabe's observations apply equally to the decision-making role of the Department. When this Court reviews decisions of delegates of the Department, it does so in the framework of an objective of ensuring that the public can be satisfied that there are checks and balances in place to support a high standard of government decision-making. In the case before me, I acknowledge that there is a public interest in highlighting the mistakes in the delegate's decision, in order to promote quality decision-making. Does the curial function mean that litigants should be awarded relief for every incorrect decision? We know that the answer is 'no', as other public interest factors, such as substantial injustice and efficiency might come into play. This is considered in the following paragraphs.

1. I have considered whether refusal of the extension would result in substantial injustice. There is a line of authority which suggests that even though an explanation for a lengthy delay may be inadequate, an extension of time is nonetheless warranted if the substantive case is strong, based on principles of substantial injustice.
2. In MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 (MZZGC) at [36] Mortimer J was satisfied that it was in the interests of the administration of justice for the applicant to be granted an extension of time, notwithstanding the absence of a satisfactory explanation for the delay. Mortimer J in MZZGC at [13] said:

In applications for judicial review in respect of migration decisions, if there is merit in a ground of review, it is generally obvious that there may be substantial injustice in a party in refusing leave, because the party will be fixed with an arguably unlawful decision that affects her or his migration status in Australia, with all the consequent adverse effects the absence of secure migration status brings, including exposure to detention and removal. When as here, the application is for a protection visa and the claim made is based on a fear of persecution, in my opinion, special careful consideration should be given to the question of an extension of time because the claimed consequence for an applicant on refoulment to the country against which the claim for protection is made are of a fundamentally serious kind.

1. This case was followed in SZVBN v Minister for Immigration and Border Protection [2016] FCA 898 (SZVBN) at [44] per Griffith J, where there was a three-month delay in lodgement of the application for judicial review, but an extension was granted as the merits of the substantive case were strong.
2. As in MZZGC and SZVBN, in the case before me, the merits of this case are strong, or in the words of Katoa, 'exceptional', for reasons set out earlier. There is no doubt that there was a jurisdictional error in the decision of the delegate. However, there is a notable distinction in the circumstances in MZZGC and SZVBN. In those cases, the applicant had applied for a protection visa, and the injustice which would result in refusal to grant the extension was possible refoulment. In the case before me the consequences of not granting leave are arguably not as serious as in those cases, as the outcome would be an inability to study and possibly a need to return to India. An applicant who is not granted an extension of time may also face stress, exposure to detention and removal. Significantly, the injustice does not emanate from the unlawful decision itself, but rather from the actions of the applicants. If they had kept in contact with the Department, they would have availed themselves of the benefit of the visas.

Public interest - effectiveness and efficiency

1. Notwithstanding the curial function referred to in preceding paragraphs, there is also a public interest in ensuring that allegations that officers of the Commonwealth have acted in excess of their jurisdiction are dealt with in an expeditious manner: MZABO v Minister for Immigration and Border Protection [2016] FCA 980 [5].
2. In Re Commonwealth of Australia, ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 (ex parte Marks), McHugh J observed, in relation to proceedings in which prerogative writs were sought (at 474 [15]):

[T]he public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

1. These principles apply in interlocutory matters such as this one, where extensions of time are sought. Counsel for the Minister referred me to the decision of the Full Court of the Federal Court in Minister v SZIQB [2008] FCAFC 20 (SZIQB) where there was a strong substantive case, but no extension granted. In that case, the Minister conceded that there was jurisdictional error in the Tribunal decision. The applicant had applied seven years after the decision for judicial review, claiming that he had left the address which he had provided to the Tribunal. The Federal Magistrates Court declared that the decision of the Tribunal was invalid. The Minister appealed successfully. On appeal the Court was not satisfied that an extension of time should have been granted (SZIQB at [20] - [26]).
2. There is other authority for the proposition that where there is extended delay, relief should be refused. In S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 451 (cited in SZIQB) relief was declined because of a delay of 5 years. In Gararth v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 91 ALD (Gararth) [62], Wilcox J observed that, while not a rigid rule, a delay of five years would ordinarily constitute a significant delay. His Honour referred also to ex parte Marks, in which a delay of 17 months was treated as significant, and in Gararth itself, the delay of two years was considered to be of 'such significance as to call for explanation, if a court is not to reject the case on discretionary grounds'. Even delays of seven months, have been held to be significant: BYB22 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 556 per Judge Leishman at [32].
3. In some cases, the lack of explanation for a delay has been sufficient to override other considerations. In Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) per Wigney J at [38] observed:

The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran's application for an extension of time.

1. In EDY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 402 at [60], Judge Corbett also indicated that an application for extension of time was determinative, referring to a delay of 21 months:

Given the length of the delay, the onus was on the applicant to provide a credible and persuasive explanation of why an extension of time was necessary in the interest of the administration of justice, which the applicant has failed to do. For this reason alone, the application for an extension must be dismissed.

1. In both Tran and EDY18, the court found that the substantive cases lacked merit, so it is speculative as to what the outcome would have been in either of these cases had there been good prospects of success. However, their Honours in both cases clearly expressed a view that the delay and absence of explanation alone could justify a dismissal of the application for extension. Similarly, in SZOGT v Minister for Immigration [2010] FMCA 613 (SZOGT), Smith FM found that it was not necessary in the interests of the administration of justice, to grant an extension notwithstanding that jurisdictional error was conceded, where there was a delay of 21 months coupled with a broader history of delay by the applicant (SZOGT [27]- [31]).
2. In SZIQB there was a delay of seven years, and there were long delays in some of the other cases referred to above. In the case before me the delay was just under a year, so still significant, but not extraordinary. However, the principles in these cases apply - specifically that there is a public interest in expeditious and efficient judicial review.
3. In SZIQB, particular attention was given to the applicant's failure to assert his rights and the applicant's contribution to any resultant injustice. At [23], Branson, Emmett and Bennett JJ observed that the applicant had not kept the Department informed of his address which it said was a factor to be weighed in the balance when a claim is advanced for discretionary relief. The Court also noted that the applicant had not approached the Tribunal to inquire about the status of his matter (SZIQB [20]). The Court noted:

The Federal Magistrate cited the following passage from the reasons for judgment of Kirby J in SZBYR v Minister for Immigration (2007) 235 ALR 609 at [57]:

In my own reasons in Aala [ie Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82] I indicated that the 'public character of the legal duties' which the remedies were designed to uphold meant that 'ordinarily, [relief] will issue where the preconditions are made out. I went on to acknowledge:

'But circumstances will occasionally arise where it is appropriate to withhold the writ because a party has been slow to assert its rights, has been shown to have waived those rights, or seeks relief in trivial circumstances or for collateral motives, and where the issue of the writs would involve disproportionate inconvenience and injustice.'

1. Permitting applicants to lodge applications out of time in circumstances where they have failed to take reasonable steps to communicate with the Department or to remain informed about their visa status, undermines the purpose of the statutory time limits. These timeframes are designed to ensure smooth progress of litigation in the context of procedural fairness being afforded to applicants (notifications about deadlines and processes of judicial review). Timeframes are essential to ensure that administrative decisions are final and operative and that courts operate efficiently. Timeframes are particularly important in migration cases where the Department, Tribunal and courts are grappling with enormous backlogs.
2. In the case before me it was incumbent on the applicants to notify the Department of changes to their contact details and to ensure that the agent was able to contact them. The first applicant claimed that he lost his mobile telephone and lost access to his emails. However, he did not keep in contact with his agent or the Department and did not provide new contact details to these parties. For these reasons, the applicants did not know of the visas granted to them, although it is not clear why the agent did not take other steps to contact them. This then led to the applicants applying for judicial review after the statutory deadline for such applications. It was the applicants' own conduct which led to this outcome.
3. Mr Reilly for the Minister highlighted that the case before me was not the kind of case referred to in the authorities which say that the strength of the case warrants an extension of time due to the resulting injustice. He submitted that the authorities relate to situations where an application for a visa was refused, whereas in the case before me, the visa was granted. This argument has force. In MZZGC and SZVBN, visa refusals by the Tribunal were challenged. As the cases had merit, there was a public interest in ensuring that injustices did not prevail where a primary decision-maker had made an unlawful decision with adverse repercussions for the applicant. As Mortimer J said in MZZGC at [13] '...it is generally obvious that there may be substantial injustice in a party in refusing leave, because the party will be fixed with an arguably unlawful decision that affects her or his migration status in Australia'.
4. In the case before me there was a visa grant by the Department. Although the visa grant may have been unlawful, it was not the visa grant that caused the injustice, it was the actions of the applicants.
5. Mr Jones, Counsel for the applicants, submitted that an applicant granted a visa may have an interest in challenging the terms of the grant, citing DVRL v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1540. He argued that by parity of reasoning, a visa holder may have an interest in having the grant of the visa set aside. However, there is no parity between a case where the applicant challenges restrictive terms of a visa, and a case such as the one before me, where the applicant seeks to challenge the grant of a visa which conferred a benefit on him. So that the migration system can work effectively, it is not in the public interest for applicants to challenge delegate's decisions because the applicants have not been diligent in taking reasonable steps to find out if their visas have been granted. What sets this case aside is that the primary decision was beneficial to the applicants. Any resulting adversity flowed from the applicants' conduct.
6. In short, the public interest in finality weighs against the applicants in this case, as they were granted the visas, rather than having them refused. The decision they seek to impugn was beneficial to them.
7. Although I acknowledge that it is central to the function of this Court to carry out its curial function of locating jurisdictional error in the decisions of primary decision-makers, and there is exceptional merit in the substantive case before me, when considering the delay, the lack of reasonable explanation for the delay, the public interest and the nature of the case, I am not satisfied that the extension of time is needed in the interests of the administration of justice.

1. The application for extension of time is refused.
2. The Court will hear the parties on costs.

I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.