Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1607

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. By application, filed on 8 January 2024, the applicant seeks an order under s 477(2) of the Migration Act 1958 (Cth) (the Act) to extend time for him to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 9 November 2023. The Tribunal found that it did not have jurisdiction to review the decision of a delegate (the delegate) of the First Respondent (the Minister) refusing to grant the applicant a Student (Temporary) (class TU) (subclass 500) visa (the visa).

1. The applicant is a citizen of India. On 26 June 2023 he applied for the visa, subject to these proceedings.
2. In the visa application, an email address 'Email A' was provided for the purpose of receiving correspondence from the Department in relation to his application. In response to the question about whether the applicant had authorised another person to receive written correspondence on his behalf, the answer was 'no': CB 5.
3. On 22 August 2023, the delegate refused to grant the visa as they were not satisfied that the applicant genuinely intended to stay in Australia temporarily as required by cl 500.212 of the Migration Regulations 1994 (Cth) (the Regulations).
4. On 5 September 2023, the applicant applied to the Tribunal for a review of the delegate's decision: CB 53-62. The application was lodged on the incorrect form. In the application for review application form, the email address 'Email B' (the nominated email address) was provided for the purpose of receiving correspondence from the Tribunal.
5. On 6 September 2023, the Tribunal sent an email to the nominated email address informing the applicant of issues with his application and non-payment of the prescribed fee.
6. On 14 September 2023, the Tribunal sent an email to the nominated email address inviting the applicant to comment on the validity of the application for review: CB 76-77. The Tribunal explained that the application appeared to be invalid as the applicant had not paid the application fee before the expiry of the time limit for lodging the application. The applicant was invited to provide any comments on the validity of the application in writing by 28 September 2023.
7. On 18 September 2023, an email was received by the Tribunal from the nominated email address, which appeared to be from the applicant, explaining he had difficulties with submitting documents through the online portal and attaching documents to support a fee waiver application, dated 16 September 2023: CB 78-84. In a supporting signed statement, dated 18 September 2023, the applicant said he received the payment request form but was unable to upload it on the portal due to technical issues: CB 79.
8. On 9 November 2023, the Tribunal found that the application for review had not been made in accordance with the relevant legislative provisions and it did not have jurisdiction to conduct a review of the delegate's decision: CB 87-88.
9. On 13 November 2023, the Tribunal sent an email to the nominated email address providing the applicant with a notice of the decision: CB 85-86.
10. On 29 December 2023, the applicant contacted the Tribunal claiming he had not heard about his case and that his agent had not disclosed to him where his case was up to. The Tribunal sent a copy of the decision and notification letter to the applicant at email address 'Email C': CB 89-90.

1. The Tribunal found that the prescribed fee had not been paid, nor was there a determination (or request) that the fee should be reduced prior to the expiry of the prescribed period, which it found at [3] had ended on 12 September 2023. Consequently, the Tribunal concluded that the review application was not valid and that it did not have jurisdiction in the matter.

1. The application which commenced proceedings in this Court advanced three grounds pertaining to the extension of time and five grounds in respect of the proposed application for judicial review. Also filed with the application was an affidavit affirmed by the applicant which attached a copy of the Tribunal's decision. As the Tribunal's decision was included in the Court Book, it was not necessary to take this affidavit into account.
2. The applicant did not file any written submissions. The Minister filed written submissions on 12 August 2025.
3. The parties appeared before the Court at the hearing on 26 August 2025. The applicant appeared in person and was assisted by an interpreter in the Punjabi and English languages.
4. Mr Westenberg, a solicitor advocate, appeared on behalf of the Minister.
5. The Court Book was tendered into evidence by the Minister and marked Exhibit CB.
6. Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the matters that would normally be considered by the Court, which it noted were not exhaustive, when determining whether time should be extended to enable him to pursue his substantive application for judicial review.

CONSIDERATION OF THE EXTENSION OF TIME APPLICATION

1. The applicant did not commence proceedings in this Court within the 35-day period prescribed by s 477(1) of the Act.
2. Under s 477(2) of the Act, the Court has the power to extend the 35-day limit if:

(a) the applicant has requested the extension of time in writing and provided reasons for why it is necessary in the interest of the administration of justice for time to be extended; and

(b) the Court is satisfied that it is necessary in the interests of the administration of justice for time to be extended.

1. The applicant has sought an order (in writing) that the time for making the application be extended under s 477(2) of the Act. He provided the following grounds in support of his application for extension of time:
   1. I appointed a migration agent called [GS] in Melbourne, telephone [+61...] and India number [+91...], to lodge a review for my student application refused on 22 August 2023. The agent was paid $3,400 for the review application as well a $1000 for his fee.
   2. I was not aware that the Tribunal on 13 November 2023 replied to him that it has no jurisdiction to determine my application for review. I found out recently by contacting the Tribunal in person and the Tribunal gave me the decision dated 9 November 2023.
   3. I ask the honourable Court to accept this application as I was cheated by the migration agent who put in my application for review but did not pay the appropriate fee.
2. The circumstances, which are non-exhaustive, when considering whether to grant an extension of time, generally include: the length of the delay; the explanation for the delay; any prejudice to the Minister; and whether the grounds of the substantive application have any merit: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 and confirmed in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [13], [40].
3. In considering whether the grounds of the judicial review application have any merit, the Court need only do so at a "reasonably impressionistic level": MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110. As explained to the applicant at the hearing, the Court need only be satisfied that the grounds of his judicial review application have some prospect of success or raise a sufficiently arguable ground of jurisdictional error on the part of the Tribunal.
4. The applicant was invited to make oral submissions in relation to each of the circumstances, and the Court has considered those submissions.

1. The length of the delay is 25 days. The Minister concedes that this is not a significant period.
2. As to the explanation for delay, the applicant submitted at the hearing before me that his agent did not explain to him that he had to submit the application to the Court and did not provide him with the correct information. The applicant said the agent was not registered, but he had offices in India and Australia. He said the agent was referred by a friend.
3. The Minister submitted that the applicant has not provided affidavit evidence (as required by rule 29.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021), to explain the delay or why it is in the interests of the administration of justice for the Court to grant the extension.
4. In responding to the matters raised by the applicant, the Minister submitted that the assertions do not provide any satisfactory explanation for the delay. In respect of the applicant's claim that he had to contact the Tribunal to obtain an update on his case, the Minister acknowledged this was consistent with the Tribunal's case note dated 29 December 2023 (CB 90).
5. It was submitted that the applicant had not provided any explanation as to why he waited until the end of December 2023 to seek an update from the Tribunal on the status of the application. The Minister noted that the applicant had not provided documentary or affidavit evidence to support the claim that he appointed and/or paid a migration agent for the purpose of lodging the review application. The Minister noted there was nothing in the material before the Court which indicated the applicant was receiving any assistance in relation to the application or that the applicant had appointed an authorised recipient. The Minister noted the following responses in the review application form:
   • the applicant answered 'no' when asked if a representative was being appointed to act on his behalf and to be the authorised recipient; and
   • the applicant selected the option 'to the review applicant' in response to the question that asked where the Tribunal should send correspondence about the application (CB 57-58).
6. The Minister highlighted the lack of any correspondence, payment, or other engagement with the purported agent to suggest that the applicant was not the person receiving correspondence from the Tribunal.
7. While I acknowledge the matters raised by the Minister regarding the lack of documentary and/or affidavit evidence in support of the applicant's submissions, I am prepared to accept what the applicant has said from the bar table about the assistance he sought from an unregistered agent, as this is fairly consistent with the experience of applicants who rely on unregistered or unqualified persons to assist them with migration related matters. I note, however, that the applicant was aware that a review application was being lodged on his behalf and he could have been more vigilant by following up with the person who assisted him, or the Tribunal directly, to ensure his application had been properly lodged within time and keep himself informed of the progress.
8. In any event, I am satisfied that the applicant relied on an unregistered agent to assist him with the application for review, that the agent had not kept him informed of the outcome of the review application and that this likely led to the delay in filing the application with this Court.
9. Having regard to the length of the delay, which was not significant, and the applicant's explanation, which I have accepted, I give some weight to this factor in favour of granting the extension of time.

1. The applicant did not make any submissions in respect of this consideration.
2. The Minister submitted they were not affected by any specific prejudice due to the delay, beyond the public's interest in the finality of administrative decision making. It was also submitted that the mere absence of prejudice alone was not a sufficient reason to grant an extension of time and that the Minister has a legitimate interest in the timely disposal of applications for visas: WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [42].
3. While the Minister has not identified a specific prejudice, I accept that this does not of itself justify granting the extension of time. I consider this factor to be neutral.

1. In determining whether an extension of time should be granted, the Court has considered, at a reasonably impressionistic level, whether any of the proposed grounds in the application for judicial review have any reasonable prospect of success.
2. The five grounds advanced by the applicant (without alteration) are:
   1. The migration agent created an email address to which he had access and failed to pay the appropriate fee.
   2. The agent fraudulently failed to pay the fee and for that reason the Tribunal failed to accept my application for review.
   3. My sister in Canada tried to get in touch with the agent and failed to reach him. I deny that I ever used the following email address: 'Email B' nor 'Email A'.
   4. I am a victim at the hand of the migration agent.
   5. I am a genuine student and the Department on 22 August 2023 failed to grant me student visa.

1. By these grounds, the applicant alleges that he was the victim of fraud by an agent.
2. In oral submissions, the applicant said he paid the agent, by cash in India, the filing fee for the review application as well as $1,000 for his fees. The applicant said the agent failed to pay the Tribunal the filing fee. He said he trusted the agent because he had an office in India and in Melbourne.
3. The Minister submitted that an allegation of fraud is a serious matter that must be pleaded with sufficient particularity and distinctly proved. To establish jurisdictional error by the Tribunal, the applicant bears the onus of establishing two essential matters:

(1) that the migration agent committed a fraud 'on' the applicant; and

(2) that the fraud had the immediate consequence of "stultifying" or 'subverting' the performance of the Tribunal's statutory function: SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 (SZFDE) at [49]-[51].

1. It was submitted that the applicant must prove the allegation of fraud to the Briginshaw standard, which will not be satisfied by inexact proof or indirect inferences: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363, 368.
2. The Minister contended that despite orders being made on 19 July 2024 and 2 July 2025 permitting the applicant to file additional evidence, the applicant has not filed any evidence to substantiate the allegation that he retained an agent who created various email addresses and failed to pay the application fee.
3. As discussed above, I am satisfied that the applicant had sought the assistance of a person, who was not a registered migration agent, to assist him with lodging the application for review with the Tribunal. I am also prepared to accept that the person who assisted the applicant created the nominated email address for the purposes of assisting the applicant with the lodgement of the review application and communicating with the Tribunal. However, I do not accept that this person sought to defraud the applicant, such that it adversely affected the statutory function and powers of the Tribunal. The evidence before the Court, as set out below, clearly demonstrates that the failure to lodge a valid application with the Tribunal within the prescribed period was due to negligence, inadvertence, or incompetence on the part of the person assisting the applicant.
4. As noted above, the prescribed period by which the applicant had to lodge a valid application for review with the Tribunal was 12 September 2023. On 5 September 2023, being before the prescribed period had ended, an application for review was filed with the Tribunal via its online lodgement facility. Unfortunately, it was indicated on the review form that the decision for which the applicant was seeking review was a decision in respect of 'a refusal or cancellation of a protection visa': CB 55. Review of a decision to refuse or cancel a protection visa does not attract a filing fee. By not providing the correct description of the decision to be reviewed, no request was made in the online form for any application fee to be paid. Had the correct description been provided in the review application form, a request would have been made for payment of the application fee. This was the first mistake that occurred with the attempt to lodge a valid application for review.
5. On 6 September 2025, being the day after the attempt to lodge a valid application and still within the prescribed period by which a valid application could have been made, the Tribunal sent the applicant an email (CB 67), to the nominated email address, in which it relevantly stated the following (without alteration, including emphasis from the original):

One of the requirements for a valid application for review is that the applicant fee is paid before the prescribed period for making a valid application has ended.

Since the application was lodged on the incorrect form, the required application fee of $3374 has not been paid.

Should payment of the full fee cause, or be likely to cause you severe financial hardship, you may consider completing the attached M11 Request for Fee Reduction Form, and pay 50% of the application fee, being $1687. A Tribunal officer will then assess your fee reduction request and determine if the application fee can be reduced. Please not support documentary evidence is required for all fee reduction applications.

...

Please read the attached correspondence carefully, noting that we may require a response from you before a certain date.

If you have any questions or are experiencing problems opening the document/s attached to this email message, please contact us immediately at MRDivision@aat.gov.au, or call 1800 228 333.

1. Nothing further was received by the Tribunal by 12 September 2025. The failure to act upon the Tribunal's correspondence before the prescribed period had ended was the second mistake that occurred with the attempt to lodge a valid application for review.
2. In response to the Tribunal's invitation to comment on the validity of the application for review (CB 76-77), the Tribunal received an email on 18 September 2023 from the nominated email address which contained three attachments (CB 78-84). Relevantly, they included:
   • A statement signed by the applicant, dated 18 September 2023, in which he states that he received the payment request form but was unable to upload it on the portal due to technical issues (CB 79):
   • Completed and signed payment page of form M1 providing the applicant's credit card details and signature to the Tribunal for payment of the full application fee (CB 80); and
   • A completed 'Request a Fee Reduction' form signed by the applicant on 16 September 2023.
3. The failure to pay the required application fee, or at least 50% of the fee together with a request for a fee reduction, before the prescribed period had ended, appears to be the result of mistakes made by the agent in the process of attempting to lodge a valid application for review.
4. Even accepting that the applicant engaged an unregistered agent to assist him with lodging the review application and accepting that this person had set up an email account for the purposes of that application which the applicant may not have had access to, I am not satisfied on the evidence before me that the agent's conduct constituted fraud. As submitted by the Minister, there is nothing in the material before the Court to suggest that the agent's conduct involved the requisite element of dishonesty or bad faith. Nor can an inference be drawn that the mistakes which occurred were deliberate or there was some intention on the part of the agent to mislead or deceive the applicant and/or the Tribunal. There was simply no reason for the agent to have gone to the effort of obtaining signed documents from the applicant and providing them to the Tribunal on 18 September 2023 if his intention was to deceive the applicant and take his money. This, in my view, was plainly a case of incompetence or negligence on the part of the agent.
5. Having regard to well-established authorities, I accept the Minister's submission that mere negligence, inadvertence or incompetence on the part of an agent will not constitute fraud so as to warrant judicial intervention: Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [30]-[33].
6. The mistakes led to the application for review not being validly made within the prescribed period. As held in SZFDE at [53]:

... [T]here are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made ...

1. As noted by the Minister, the application for review had to be made in the approved form, be given to the Tribunal within the prescribed period, and be accompanied by the prescribed fee: s 347 of the Act. While the regulations provide for a reduction of the prescribed fee, it is well settled that the payment of an application fee (or at least 50% of that fee) within the prescribed period is a mandatory requirement to enliven the Tribunal's jurisdiction: Boyjonauth v Minister for Immigration and Multicultural Affairs [2024] FCAFC 130; (2024) 305 FCR 152 at [74].
2. In this case, the application for review had to be lodged by 12 September 2023 and accompanied by at least 50% of the prescribed fee. As no application fee had been paid and as a fee reduction request had not been made until 18 September 2023, after the prescribed period had ended, the Tribunal had no jurisdiction to conduct a review. The Tribunal had no power to extend time and was correct to find at [88] that it had no jurisdiction in the matter.
3. For these reasons, grounds one to four do not enjoy any reasonable prospect of success.

1. By ground five, the applicant contends that the delegate committed an error by their failure to grant him a visa as he was a genuine student. To the extent that this ground takes issue with the delegate's decision, this Court does not have jurisdiction to review that decision as it is a primary decision: ss 476(2)(a) and (4) of the Act. In so far as this ground takes issue with the Tribunal's decision, this, as submitted by the Minister, is misconceived, as the Tribunal did not have jurisdiction to review the delegate's decision.
2. Ground five does not enjoy any reasonable prospect of success.
3. As none of the proposed grounds enjoy any reasonable prospect of success if time were extended, this factor weighs heavily against granting the extension of time.

1. Having considered and weighed the relevant factors, I am not satisfied that it is necessary in the interests of the administration of justice to extend time in this case.
2. For these reasons, the application for an extension of time must be dismissed.

1. The Minister sought an order that the applicant pay their costs fixed in the sum of $4,189.38. The applicant said he would be unable afford this amount. However, as explained to him at the hearing, financial hardship is generally not a reason for the Court not making a costs order. I am satisfied that in this case costs should follow the event. Further, having regard to the work undertaken and the scale costs for a standard interlocutory migration matter, I am satisfied that the costs sought in this matter are reasonable and will so order.

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