Rajbhandari v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 309

1. By application filed on 23 July 2024 (Application), the applicants seek orders for an extension of time and leave to appeal the orders made on 28 June 2024 by the Federal Circuit and Family Court of Australia (Division 2) in Rajbhandari & Ors v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 569 (First Instance Decision). The primary judge dismissed the applicants' application for an extension of time to review a decision of a Judicial Registrar of that Court to summarily dismiss the application for judicial review.
2. The applicants sought judicial review of the decision of the Administrative Appeals Tribunal (Tribunal), dated 2 April 2019, to dismiss the applicants' application as they failed to appear at a scheduled hearing, and the subsequent confirmation of that dismissal dated 21 May 2019.
3. The Tribunal was established by the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (now repealed). The AAT Act was repealed on 14 October 2024 by sch 17 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (ART Transitional Act). Pursuant to s 10 of Sch 16 of the ART Transitional Act, the Administrative Review Tribunal is substituted for the Tribunal as a party to this proceeding with effect from 14 October 2024. By operation of Item 25 of Schedule 16 to the ART Transitional Act, any orders of the Court in this appeal are taken to relate to the Administrative Review Tribunal.

1. The relevant background is contained in the First Instance Decision at [3]-[7].
2. On 12 March 2017, the first applicant, a citizen of Nepal, applied for a Student (Temporary) (class TU) (subclass 500) visa (Visa), listing the second and third applicants (the first applicant's husband and child) as accompanying family members (Visas). The application was made with the assistance of AECC Global Visas Pty Ltd (Representative). The applicants provided the address "aeccglobalvisas@gmail.com" (email address) as their address for service.
3. On 28 June 2017, the delegate notified the applicants, via email to their email address, of the decision to refuse to grant the Visas on the basis the delegate was not satisfied the first applicant intended genuinely to stay temporarily in Australia pursuant to cl 500.212(a) of sch 2 to the Migration Regulations 1994 (Cth). Therefore, the delegate also found that the second and third applicants did not satisfy the requirements of cl 500.311 of sch 2 to the Regulations; that is, they were not a family member of a person who holds a student visa.
4. On 17 July 2017, the applicants applied to the Tribunal for merits review, with the assistance of the Representative, attaching a copy of the delegate's decision. The applicants provided the email address as both their personal email address and the email address of their Representative.
5. By letter dated 25 January 2019 emailed to the email address, the Tribunal invited the applicants to appear before it to give evidence and present arguments at a hearing on 12 February 2019.
6. By email dated 10 February 2019 sent from the email address, the Representative requested that the hearing be postponed for medical reasons. The Tribunal granted the applicants' request and, by email sent to the email address on 18 March 2019, the Tribunal invited the applicants to appear at a rescheduled hearing on 2 April 2019.
7. The applicants did not attend the hearing and, by letter dated 3 April 2019 (which was emailed to the email address), the Tribunal notified the applicants of its decision, dated 2 April 2019, to dismiss the application for non-appearance (Non-appearance Decision). The Tribunal's letter informed the applicants they could apply for reinstatement of the application by 17 April 2019.
8. On 9 May 2021, the Representative sent an email to the Tribunal, requesting a written statement to confirm the dismissal of the applicants' application for judicial review.
9. The applicants did not apply for reinstatement and, by letter dated 21 May 2019 (which was emailed to the email address), the Tribunal notified the applicants of its decision, dated the same day, to confirm the Non-appearance Decision (Confirmation Decision).
10. On 3 June 2019, the applicants applied for judicial review of the Confirmation Decision.
11. On 12 April 2024, the judicial review application was summarily dismissed (Summary Judgment Decision).
12. On 7 May 2024, the applicants applied for an extension of time to seek review of the Summary Judgment Decision. On 28 June 2024, the primary judge delivered the First Instance Decision dismissing the application for extension of time to review the Summary Judgment Decision.
13. On 23 July 2024, the applicants filed the present Application.

1. The applicants seek an extension of time to apply for leave to appeal to assert the following grounds of review (copied exactly:)
   1. The Federal Circuit Court failed to find that the Administrative Appeals Tribunal fell in jurisdictional error in determining without a logical and probative basis that all the evidence upon which his claim was based was false.
   2. The Federal Circuit Court failed to find that the Administrative Appeals Tribunal fell in misapprehending the evidence and then use its erroneous findings about the evidence.
2. The applicants are self-represented. The applicants filed written submissions on 3 March 2026 in which they submitted that:

(a) the Tribunal misunderstood key aspects of the applicants' claims and then relied upon those misunderstandings to reject the case;

(b) the Tribunal, by misunderstanding the facts, constructively failed to exercise jurisdiction;

(c) even where non-appearance by a party occurs, jurisdictional error arises as procedural fairness has already been compromised;

(d) a procedural dismissal cannot validate an otherwise unlawful reasoning process;

(e) the Tribunal failed to provide a genuine opportunity for the applicants to address their concerns;

(f) the statutory framework of the Migration Act 1958 (Cth) (Act) requires a real and meaningful opportunity to respond, not merely formal notice; and

(g) the Tribunal's approach resulted in practical unfairness.

1. The applicants further submit that the primary judge failed to properly consider whether the Tribunal's findings lacked a logical basis and address the material misapprehension of evidence. Instead, the primary judge "focused narrowly on the non-appearance issue". The applicants allege this was an error because "the jurisdictional error alleged arose independently of attendance".
2. The applicants submit that "refusal of leave would expose the applicants to removal consequences without proper judicial consideration of serious jurisdictional error".
3. The applicants submit that the consequences are grave and irreversible for the applicants and this strongly supports granting an extension of time and leave to appeal.
4. At the hearing, the first applicant appeared to represent the applicants. The first applicant was assisted by a Nepali interpreter.
5. The first applicant said that she had had difficulties with her baby and that she was now feeling stronger. I understood this to be an explanation as to why she had failed to appear at the hearing before the Tribunal on 2 April 2019. The interpreter, at my direction, asked the first applicant if there was anything further she wished to say to the Court in support of the Application. The first applicant said she did not.
6. The solicitor advocate appearing for the respondents, Mr Anastasi, relied upon the primary judge's reasoning at [35] of the First Instance Decision, and otherwise relied upon the respondent's written submissions. I asked the interpreter to translate paragraph [35] of the First Instance Decision and then asked the applicant if she wished to make any further submissions in response. The first applicant informed me that she did not wish to make any further submissions.

1. For the reasons that follow, the Tribunal's Non-appearance and Confirmation Decisions are free from error, and, therefore, an appeal has no merit.
2. Both hearing invitations, dated 25 January 2019 and 18 March 2019 respectively:

(a) set out the date, time, and forum at which the hearing would be held;

(b) was correctly sent to the applicants' email address;

(c) gave the applicants more than 14 days' notice of the hearing; and

(d) contained a statement of the effect of s 362B of the Act (although not by express reference to the Act).

1. Section 362B of the Act, as at 21 May 2019 (being the date of the Confirmation Decision), read as follows:

(a) is invited under section 360 to appear before the Tribunal; but

(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

(1A) The Tribunal may:

(a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

(b) by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1: Under section 368A, the Tribunal must notify the applicant of a decision on the review.

Note 2: Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.

Note: Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

...

(1E) If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.

Note: Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear

(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.

1. As the applicants did not appear at the hearing, it was open to the Tribunal to dismiss the application for non-appearance without any consideration of the substantive application. The decision preserved the possibility of reinstatement, which the applicants were properly informed of. As they did not apply for reinstatement within the prescribed period, the Tribunal had no option but to confirm the Non-appearance Decision, which it did. Accordingly, as held in the First Instance Decision at [35], no error arises.

1. To appeal in this Court, the applicants would need to obtain:

(a) an extension of time to apply for leave to appeal;

(b) leave to appeal; and

(c) leave to raise new grounds of appeal.

1. An extension of time is required as the Application was made beyond the 14-day time limit set in r 35.13 of the Federal Court Rules 2011 (Cth). The applicants applied to this Court 25 days after the First Instance Decision, justifying their delay on the basis that the first applicant asserts she:

(...)

4....couldn't file leave to file due to unavoidable personal circumstances.

5. ha[s] been confronting very serious financial constraints and that is another reason of not filling [sic] leave to appeal within time. I am unemployed.

1. In the absence of mandatory considerations regarding the grant of an extension of time, the Court ought to consider the well-established principles outlined in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176, including to consider the merits of the substantive application (usually, at an impressionistic level): see also Badenoch Integrated Logging Pty Ltd v Bryan (2024) 306 FCR 529; [2024] FCAFC 167 at [51] (O'Callaghan, McEvoy and Neskovcin JJ) citing Hunter Valley, and Dispute Resolution Associates Pty Ltd v Selth (No 2) [2020] FCA 844 at [87] (Collier J).
2. Other relevant factors may include:

(a) the extent and reason for the delay; and

(b) whether there is any prejudice to the Minister.

1. Lack of funds and / or legal advice has been held not to be an acceptable reason for delay: GOK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 169 at [25] (Collier, Rangiah and Derrington JJ). In the absence of persuasive explanation or evidence, the delay is not insignificant.
2. The applicants also require leave to appeal because the First Instance Decision concerned a refusal of an application for an extension of time to seek the de novo review of the summary judgment. The test for whether to grant leave to appeal was described in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 (Sheppard, Burchett and Heerey JJ) - see also AIX20 v Director-General of Security [2025] FCAFC 38 at [13] (Murphy, Bromwhich and Sharrif JJ).
3. The Court must consider:

(a) whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court; and

(b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

1. As outlined in the Minister's submissions at [17]-[19], the First Instance Decision was the only decision reasonably open to the primary judge and, on that basis, the applicants cannot demonstrate sufficient doubt to warrant its reconsideration.
2. Further, as the proposed grounds of appeal differ from the grounds advanced at first instance, notably ground 2, the applicants require leave to raise new grounds, which requires the Court to consider whether it is in the interests of justice to grant leave. It has been held that leave to raise a new ground of appeal should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [46] (Kiefel, Weinberg and Stone JJ). The Court in VUAX went on to say - noting that the seeking of leave to raise new grounds of appeal is prevalent in migration matters - that leave should only be granted if the proposed ground "clearly has merit" and "there is no real prejudice to the respondent in permitting it to be agitated": at [48]. However, where "there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused": at [48].
3. The proposed ground lacks sufficient merit. As outlined above, the First Instance Decision, and the Tribunal's decision, are free from error - indeed, as I have said above, it was the only decision reasonably open to the primary judge in the circumstances. Therefore, it is not in the interests of justice for leave to be granted.

1. The application will be dismissed. The applicants will pay the first respondent's costs to be agreed or assessed on a lump sum basis by a Registrar of the Court.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.