Singh v Minister for Immigration and Citizenship [2026] FedCFamC2G 602

1. This is an application pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and r 21.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for an extension of time to review a decision made by a Registrar of the Court on 20 May 2025. On that date the Registrar dismissed the applicant's application to reinstate his judicial review proceeding.
2. The first respondent (the Minister) opposes an extension of time being granted.
3. The second respondent (the Tribunal) filed a submitting notice save as to costs.
4. For the reasons that follow I have decided to refuse the application.

1. From the court book (CB) that was tendered on behalf of the Minister at the hearing, the following background facts are uncontroversial.
2. The applicant is an Indian national. He arrived in Australia on 8 September 2014 as the holder of a Student (Class TU) (subclass 573) visa (CB 32). On 25 September 2017 he applied for a further Student (subclass 500) visa (CB 1-21).
3. On 27 November 2017 a delegate of the Minister refused to grant the applicant a visa on the basis that he did not satisfy the genuine temporary entrant criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (CB 30-35).
4. On 18 December 2017 the applicant applied to the Tribunal for merits review of the delegate's decision (CB 36-37).
5. On 5 April 2019 the Tribunal sent the applicant a letter inviting him to provide, among other things, information about the course of study he was enrolled to undertake (CB 56-58). The letter relevantly stated:

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

• enrolled in a registered course of study; and

• a genuine applicant for entry and stay as a student.

Accordingly, you are now invited to give, in writing, information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.

...

The written information requested in the Request for Student Visa Information form should be received by 23 April 2019. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

If you cannot provide the information by 23 April 2019, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 23 April 2019 and it must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

1. The applicant did not respond to the Tribunal's letter.
2. On 6 June 2019 the Tribunal affirmed the decision under review (CB 70-72).
3. It is convenient to set out the reasons of the Tribunal in full:

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 November 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 25 September 2017. The delegate refused to grant the visa on the basis that the review applicant did not satisfy the requirements of cl.500.212(a) of Schedule-2 to the Migration Regulations 1994 (the Regulations).

3. On 5 April 2019 the Tribunal wrote to the review applicant pursuant to section 359(2) of the Migration Act inviting him to provide further information to the Tribunal, including evidence of current enrolment as required by cl 500.211(a).

4. The applicant provided no response.

5. The Tribunal is satisfied the review applicant was properly invited to provide further information under section 359(2) of the Act. The invitation was sent to the review applicant's nominated address, being the address provided by the review applicant in connection with this application for review.

6. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

7. The Tribunal finds that the review applicant did not provide evidence of enrolment as requested.

8. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section·363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. It is appropriate to highlight that a decision maker is not required to make the applicant's case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met.

10. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant in as much detail as is necessary to enable the examiner to establish the relevant facts.

11. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant 14. Clause 500.211 provides:

500.211 One of the following applies:

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

(b) if the application is made in Australia - the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;

(c) if the applicant is a Foreign Affairs student - the applicant has the support of the Foreign Minister for the grant of the visa.

(d) if the applicant is a Defence student - the applicant has the support of the Defence Minister for the grant of the visa.

1. The Tribunal was provided with a copy of the Department file. The Tribunal has also read and had regard to delegate's decision record, a copy of which was provided to the Tribunal by the applicant with his application for review.
2. Critically, the Tribunal does not have before it evidence of current enrolment. As such, the Tribunal is not satisfied that the applicant is presently enrolled in a course of study as required by cl.500.211(a).
3. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
4. Accordingly, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (ClassTU) visa.

1. The applicant was notified of the Tribunal's decision by email sent on 7 June 2019 (CB 65-72).

1. On 3 July 2019 the applicant commenced judicial review proceedings in this Court by originating application and affidavit in support.
2. The application contained one ground of review - that the Tribunal failed to comply with s 359A of the Migration Act 1958 (Cth).
3. The particulars of that ground provided (reproduced verbatim):
   1. The Tribunal committed jurisdictional error by failing to give, in accordance with s359A of the Act, clear particulars of the following information/documents:
      1. The Tribunal failed to determine the actual genuine reason why I was not able to submit a valid COE at the time of hearing. It failed to understand the issuance of COE was not in my hand. The education providers refused to give me COE as my visa was refused
      2. My family who had supported me financially had incurred hardship and were unable to pay my fee at that particular time. Tribunal failed to regard any other information nor allowed me hearing to submit additional documentation. The Tribunal had power under s359, to seek any information it considered relevant
      3. The Tribunal failed to make an obvious inquiry as to whether I am able to satisfy the requirements of 500.211 by seeking additional time
      4. Tribunal incorrectly applied the relevant case of Hasran v MIAC [2010] FCAFC 40 where the circumstances were not fully related. If a COE is sought by Tribunal, the issue of applicant's eligibility to obtain such COE must have been considered on case to case bases not as a general. It was not open to the tribunal not to allow me such opportunity given the circumstances I had at the time of request form tribunal

Particulars

In its decision the Tribunal noted that it considered the evidence provided by me but found that the evidence was not sufficient to weight against the evidence contained in my documents. The decision by Tribunal was incorrectly concluded thus it fails to satisfy s359. The Tribunal failed to give proper genuine and realistic consideration to the evidence submitted by me pertaining to my application as required by Department of Home Affairs.

1. On 26 July 2019 the Minister filed his response.
2. On 31 January 2025 the Court notified the parties by email that the matter was listed for a callover hearing on 18 February 2025 at 11:00am by phone. The Court's email informed the parties that it is "very important you attend the hearing" and that if a party did not attend the hearing "the matter may be dismissed and costs may be ordered against you".
3. On 14 February 2025 the Minister's solicitor emailed the applicant, putting him on notice that if he failed to appear at the callover hearing on 18 February 2025 the Minister would seek orders that the application be dismissed with costs.
4. The applicant did not appear at the hearing on 18 February 2025 and a Registrar made orders dismissing the proceeding pursuant to r 13.06(1) of the Rules with costs.
5. On 3 April 2025 the applicant filed an application in a proceeding and an affidavit in support seeking that his judicial review proceeding be reinstated.
6. The reinstatement application was heard by a Registrar on 20 May 2025. The applicant represented himself at the hearing.
7. On the same day the Registrar dismissed the reinstatement application with costs.

1. The present application is concerned with whether the applicant should be granted an extension of time to review the orders of the Registrar made on 20 May 2025.
2. An extension of time is required because the application was made on 5 June 2025, being 9 days outside the time prescribed by r 21.02 of the Rules.
3. The application for an extension of time to review the Registrar's decision was allocated to the Court as presently constituted on 31 March 2026.
4. On the same date the Court notified the parties by email that the application was listed for hearing on 8 April 2026 at 10:00am in person.
5. The applicant represented himself at the hearing. He relied on his originating application and affidavit in support dated 3 July 2019, the application in a proceeding for reinstatement and affidavit in support dated 3 April 2025, and the application for an extension of time to review the Registrar's decision and supporting affidavit dated 5 June 2025.
6. The Minister was represented at the hearing by solicitor advocate. The Minister relied on his amended response dated 17 February 2025, the court book filed on 22 December 2021, an outline of submissions on the reinstatement application dated 13 May 2025, and an outline of submissions on the application for an extension of time to review the Registrar's decision dated 2 April 2026.
7. As the applicant was not legally represented, at the commencement of the hearing I explained the issues that the Court would consider in relation to the application to review the Registrar's decision, the extension of time application, and the reinstatement application consistent with the principles outlined below.

A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:

(a) within the time prescribed by the Rules of Court; or

(b) within any further time allowed in accordance with the Rules of Court;

apply to the Court for review of that exercise of power.

1. A review application is not an appeal. It is a hearing de novo where the matter is considered afresh: see Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 and Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 at [1]- [31].
2. Rule 21.02(1) of the Rules provides that an application for review of a Registrar's decision must be made within 7 days of the exercise of power by a Registrar.

1. The Court has a broad discretion under r 21.02(2) of the Rules to extend time for the filing of an application to review a Registrar's decision. While the Rules are silent as to the matters that might be relevant to the exercise of the discretion, it is well established in this and other jurisdictions that the essential considerations on an extension of time application are as follows:

(1) the length of delay and whether there has been a reasonable and adequate explanation for it, noting that the weight of these factors in any given case can vary considerably;

(2) whether there is any prejudice to other parties; and

(3) the merits of the substantive application, noting that in considering whether the underlying application 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", "sufficiently arguable" or have "reasonable prospects of success" such that they warrant an extension of time being granted: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [17]; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 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 at [38].

1. Like all such powers, the discretion to extend time must be exercised judicially "to ensure that justice is delivered... effectively and efficiently": s 5(a) of the FCFCOA Act.

1. Pursuant to r 17.05(2)(a) of the Rules the Court has the power to set aside orders made in the absence of a party. This power extends to setting aside an order to dismiss a proceeding that was made in the absence of a party, with the effect that the proceeding is reinstated.
2. The power to reinstate is a discretionary power which requires consideration of whether or not it is in the interests of justice to reinstate the application: see FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50].
3. While it is not an exhaustive list of considerations, in considering what the interests of justice require in a particular case, the Court will ordinarily give consideration to: whether there was a reasonable excuse for the party's absence from the hearing in which the proceeding was dismissed; the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; and whether the applicant has a reasonably arguable prospect of success on the substantive application: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]; CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4]; FBS18 at [53].
4. In considering whether an applicant has reasonably arguable prospects of success if the proceedings were reinstated, it is appropriate to assess those prospects at an "impressionistic level": HVM24 v Minister for Immigration and Citizenship (No 2) [2026] FedCFamC2G 95 at [5]. It is not in the interests of justice to reinstate a judicial review application that has no reasonable prospects of success: CAL15 at [4].

1. Having regard to the principles set out above, in considering the present application I will consider the length and reason for the delay in making the present application, the applicant's explanation for not appearing at the hearing on 18 February 2025, any prejudice to the Minister in the extension of time or reinstatement applications, and the applicant's prospects of success on the substantive judicial review application.

1. As set out earlier, the application for review of the Registrar's decision was made 9 days late.
2. The Minister concedes this delay is not significant.
3. The applicant's explanation for filing his application late is that he did not know that he only had 7 days to file his application. He says that he attended the Court's Registry on 4 June 2025 to get the application form, and before this he had checked online and thought that he had 21 days.
4. While there is no evidence before me about the online enquiries made by the applicant which led him to believe that he had 21 days to file an application for review, it is not implausible that the applicant reviewed the wrong information, or otherwise misunderstood information that he found online.
5. However, it is well established that a person's ignorance of the necessary time limits or the method and pathway for seeking review does not generally justify delay. It was the applicant's responsibility to accurately ascertain his review rights and the applicable time limits: see MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25] citing SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38].
6. In my view the quality of the explanation for what is, in the scheme of things, a relatively short delay, does not weigh heavily against the exercise of the discretion to extend time. The limited explanation for the delay alone would not prevent me from exercising the discretion to grant the extension of time if the other factors to be considered supported it.

Explanation for non-appearance at the hearing on 18 February 2025

1. The applicant claims that the reason he did not attend the hearing on 18 February 2025 is that he was unaware that the proceeding was listed because he did not receive notification of the hearing.
2. That claim is unsupported by evidence and is inconsistent with material on the Court's file that:

(1) the applicant has at all times represented himself in the proceeding and maintained the email address for service nominated in his originating application;

(2) on 31 January 2025 the Court notified the applicant of the hearing on 18 February 2025 at that email address; and

(3) on 14 February 2025 the Minister's legal representatives reminded the applicant of the hearing by correspondence to that email address.

1. In the conduct of this proceeding the Court and the Minister were entitled to rely on the email address for service provided by the applicant. It was at all times the responsibility of the applicant to provide and maintain an accurate and current email address for service, and to monitor that email account for correspondence relating to this proceeding.
2. In those circumstances I find that the applicant has not provided a reasonable excuse for his absence from the hearing on 18 February 2025. This weighs against the merit of the reinstatement application.

1. The Minister submits that there is some prejudice to him if the extension of time were granted by reason of the expiry of the review period and his expectation that there would be no application for review filed. It was, however, accepted that any such prejudice was not substantial.
2. The Minister otherwise concedes that he would suffer no particular prejudice (other than costs) if the application were to be reinstated.
3. It is well established that the absence of prejudice alone is not a basis to grant an extension of time: see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. Similarly, the mere absence of prejudice is not a sufficient basis to exercise the discretion to reinstate: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [34].
4. There is also an interest in the finality of proceedings which must be taken into account: FEH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1512 at [24].
5. Overall I consider the issue of prejudice to be relatively neutral in my consideration of whether to grant an extension of time and as to the merit of the reinstatement application.

Merit of the substantive judicial review application

1. As set out earlier, the applicant's judicial review application contains one ground of review, being that the Tribunal failed to comply with s 359A of the Act. He then sets out numerous "particulars" to this ground.
2. As at the date of the Tribunal's decision, s 359A of the Act provided as follows:

(1) Subject to subsections (2) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in section 379A; or

(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

(4) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non‑disclosable information.

(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

1. Section 359A of the Act reflects the codification of the natural justice hearing rule by requiring the Tribunal to put certain adverse information to an applicant for comment or response. It does not require the Tribunal to provide an applicant with a running commentary on the Tribunal's assessment of gaps or lack of detail in the applicant's evidence: see SZBYR v Minister for Immigration and Citizenship [1981] HCA 26; (2007) 147 CLR 297 at [18] where the High Court considered the cognate provision to s 359A under the Act, s 424A, citing VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at [24].
2. In the circumstances of this case, there was no information obtained by the Tribunal which enlivened its obligations under s 359A of the Act. The applicant had not responded to the Tribunal's request for information made on 5 April 2019. Further, pursuant to s 359A(4)(b) of the Act, the obligations in s 359A do not apply to information that the applicant gave for the purpose of the application for review.
3. The particulars advanced by the applicant do not otherwise particularise any material fact capable of enlivening s 359A of the Act.
4. Notwithstanding this, acting consistently with his obligations as a model litigant, the Minister approached the applicant's particulars as discrete grounds of review and addressed them in his submissions accordingly. I consider it appropriate to adopt the same approach and will consider each of those particulars in turn.
5. By particular (a)(i) the applicant complains that the Tribunal did not determine the reason why he was not enrolled in a course of study.
6. As the Minister submits, this complaint misunderstands the task of the Tribunal. The Tribunal's task was to determine whether the applicant met the criteria for the grant of a student visa. Critically, that criteria included the requirement in cl 500.211(a) of the Regulations that the applicant "is enrolled in a course of study".
7. The Tribunal correctly determined at [14] of its decision (reproduced above) that it did not have any evidence before it of current enrolment. (It is worthy of note that at the hearing before me the applicant conceded that he was in fact not enrolled in any course of study at that time.) That being so the Tribunal was bound to affirm the decision under review.
8. In his material and at the hearing the applicant gave various explanations for why he was not enrolled in any course of study at that time, including because his family was unable to pay his course fees and the education providers refused to allow him to enrol because his visa had been refused.
9. However, the Tribunal was under no obligation to consider the applicant's reasons for not being enrolled, nor his eligibility for any such enrolment. Further, and in any event, the applicant did not advance any claims before the Tribunal about these matters.
10. By particulars (a)(ii) and (a)(iii) the applicant complains that the Tribunal did not request additional information from him under s 359 of the Act, that the Tribunal failed to make an obvious enquiry about whether he was able to satisfy cl 500.211(a), and further, did not afford him the benefit of a hearing.
11. These complaints are misconceived as the Tribunal did request information from the applicant about his course of study and whether he was able to satisfy cl 500.211(a) by its letter dated 5 April 2019 (CB 57-58).
12. In accordance with s 359(3) of the Act, that request for information was sent to the applicant in accordance with s 379A(5) of the Act, by email to his last email address provided in connection with the review.
13. That letter also advised the applicant that he may request an extension of time to provide that information, and advised him of the process for making that request.
14. As the applicant did not provide the information or any response to the Tribunal he lost his entitlement to a hearing pursuant to the combined effect of ss 359, 360(2)(c), 360(3) and 363A of the Act, and the Tribunal had no power to invite the applicant to a hearing: see Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 at [25]- [32].
15. Pursuant to s 359C(1) of the Act, the Tribunal was then entitled to make a decision on the review without taking any further action to obtain the information.
16. By particular (a)(iv) the applicant asserts that Hasran was misapplied by the Tribunal.
17. That is simply not the case. The Tribunal correctly summarised the legal effect of Hasran and its application to the circumstances of the present case at [8] of its reasons (reproduced earlier).
18. The final unnumbered particular advanced by the applicant alleges that the Tribunal did not consider his evidence.
19. However, as the Minister submits, in circumstances where the applicant did not provide any evidence that he was enrolled in a course of study at the time of the Tribunal's decision, there was no other evidence that the Tribunal was required to consider.
20. To the extent that this particular also refers to the Tribunal not giving sufficient weight to "the evidence provided by me" as against "the evidence contained in my documents", this may be disregarded as a ground for review. The Tribunal's decision does not contain any analysis of this kind.
21. When asked at the hearing if there was anything further he would like to say in relation to his substantive application for judicial review, the applicant explained that he has subsequently obtained certificates in meat processing and has been getting experience in this field. That may be so, but, with respect, those matters are not capable of establishing any error by the Tribunal in the decision under review. Those submissions otherwise appear to invite the Court to engage in an impermissible merits review of the delegate's decision.
22. The applicant also made oral submissions that the Tribunal had applied the wrong criteria because his application was not for a "new student visa", but rather he was applying to "extend" his existing student visa to enable him to continue his studies. Those submissions have no legal or evidentiary foundation and, accordingly, have no merit.
23. It follows from the above that the judicial review application is without merit because it does not raise any arguable jurisdictional error.

1. For the reasons set out above, I am not satisfied that it is in the interests of justice to extend time. Fundamentally this is because the applicant has not provided a reasonable excuse for his absence from the hearing on 18 February 2025 and because the underlying application for judicial review of the Tribunal's decision is without merit. It would therefore be futile to extend time to review the Registrar's decision not to reinstate that application as that application has no reasonable prospects of success.
2. The application for an extension of time is refused.

1. The Minister seeks his costs of the extension of time application in the sum of $1,350.
2. The application for an extension of time having been refused, I am satisfied that costs ought to follow the event. I am further satisfied that the relatively modest amount sought by the Minister is reasonable having regard to the work performed on the application.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Edwards.