Federal Court of Australia

Khan v Minister for Immigration and Citizenship [2026] FCA 277

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.    The application for an extension of time and leave to appeal filed on 9 April 2025 be dismissed.

3.    The applicant pay the first respondent’s costs of the application as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GOODMAN J:

A.    Introduction

1    In April 2023, the applicant was notified that a delegate of the first respondent Minister had made a decision to refuse to grant the applicant a Skilled Work Regional (Provisional) (subclass 491) visa; and that the applicant had 21 days in which to make any application to the Administrative Appeals Tribunal for review of that decision.

2    The applicant, who maintains that he was operating upon a mistaken basis that he had 28 days in which to file an application for review, did not comply with the 21 day deadline. As a consequence the Tribunal, faced with an application for review that had been filed out of time and a legislative regime that made the filing on the application within 21 days a prerequisite to jurisdiction to review the decision, decided that it had no jurisdiction to undertake that review.

3    The applicant then sought review of the Tribunal’s decision in the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court). A Registrar of that Court dismissed the application summarily and the primary judge dismissed the applicant’s application to re-instate the proceeding in the Circuit Court. The applicant now applies to this Court for an extension of time and leave to appeal the primary judge’s decision.

4    For the reasons set out below, the primary judge was correct and the Tribunal lacked jurisdiction.

5    This may seem a harsh consequence for missing a deadline by less than one week. However, it is the consequence of the correct application of the legislative regime.

B.    Background

6    The background to the application is set out below.

7    On 22 March 2022, the applicant, an Indian national, applied for the visa with the nominated occupation of “Chef”.

B.1    Minister’s decision

8    On 24 April 2023, a delegate of the Minister refused to grant the applicant the visa. The delegate was not satisfied that the applicant met cl 491.214 in Part 491 of Schedule 2 to the Migration Regulations 1994 (Cth) because he did not have a valid skills assessment at the time of invitation to apply for the visa.

9    On the same day, the applicant was notified by email of the Minister’s decision. The letter notifying him of that decision stated that: (1) any application for review of the decision must be made to the Tribunal within 21 calendar days after the day on which the applicant was taken to have received the letter; and (2) as the letter was sent by email, the applicant was taken to have received it at the end of the day on which it was transmitted.

B.2    Tribunal’s decision

10    On 20 May 2023, the applicant applied to the Tribunal for review of the delegate’s decision.

11    On 22 May 2023, the applicant lodged a request for an extension of time in which to seek review by the Tribunal.

12    On 19 July 2023, the Tribunal wrote to the applicant:

I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Skilled Work Regional (Provisional) (Class PS) visa.

I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to you on 24 April 2023 and, on the basis that 24 April 2023 was the date on which you are taken to have been notified, the last day for lodging the application for review was 15 May 2023. As the application was not received until 20 May 2023, it appears to be out of time. However, this is a matter which must be determined by a Member.

If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 2 August 2023. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

…

13    On 27 July 2023, the applicant responded:

I trust this email finds you well. I am writing to formally request a short extension of time to submit my AAT application for Case Number 2306994, Type: Visa Refusal PS 491.

Upon reviewing the initial decision, I realized that I mistakenly lodged my application within a 28-day timeframe, while the correct period allowed by the AAT is 21 days. My application was submitted on May 20, 2023.

I sincerely apologize for any confusion caused and any inconvenience my oversight may have caused. I am fully committed to providing all the necessary documentation and evidence within the extended timeframe.

Please find attached the relevant supporting documents. If any further information is required, please feel free to contact me via email or on my mobile number.

Thank you for your kind understanding

14    On 9 August 2023, the Tribunal made a decision that it did not have jurisdiction to review the Minister’s decision. The Tribunal’s reasons for that decision were expressed as follows:

1.    This is an application for review of a decision of a delegate of the Minister for Home Affairs on 24 April 2023 to refuse to grant a Skilled Work Regional (Provisional) (Class PS) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 20 May 2023. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2.    Pursuant to s 347(1)(b) of the Act and reg 4.10 of the Migration Regulations 1994 (Cth) (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

3.     The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 24 April 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4.     The Tribunal finds that the applicant is taken to have been notified of the decision on 24 April 2023: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 15 May 2023. As the application for review was not received until 20 May 2023, it appears to be out of time.

5.     On 19 July 2023 the Tribunal wrote to the applicant inviting him to comment on its preliminary view that the application for review appeared to be lodged out of time.

6.     On 27 July 2023 the applicant wrote to the Tribunal and advised that he had mistakenly lodged the application out of time as he had believed that he had 28 days in which to lodge the application, instead of the 21-day period. The Tribunal has considered the applicant's response; however, it remains that the application for review was lodged outside of the prescribed time period. The Tribunal does not consider it has the discretion to dispense with this requirement, regardless of the applicant's explanation.

7.     As the application for review was not received by the Tribunal until 20 May 2023 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

DECISION

8.     The Tribunal does not have jurisdiction in this matter.

(bold emphasis in original; underline emphasis added)

B.3    Registrar’s decision

15    On 30 August 2023, the applicant filed an originating application in the Circuit Court, pursuant to which he sought judicial review of the Tribunal’s decision. The applicant advanced the following two grounds of review (as written):

1.    The Administrative Appeals Tribunal made a jurisdictional error whilst making decision on application.

2.    The Administrative Appeals Tribunal member failed to consider all the aspects of the appeal and observe principles of natural justice.

(a). In considering whether the visa applicant met the visa grant criteria required by the regulations, the tribunal member failed to fully consider the fully consider the fact that the circumstances of the case were beyond the applicant’s control.

(b). The visa applicant was not at fault and yet was affected by exceptional circumstances.

16    On 10 May 2024, a Registrar of the Circuit Court ordered that the proceeding in that Court be listed for hearing of a summary dismissal application.

17    On 30 July 2024, another Registrar of the Circuit Court summarily dismissed the application under r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), on the basis that the applicant did not have reasonable prospects of successfully prosecuting his application for judicial review.

18    On 23 August 2024, the applicant applied for judicial review of the Registrar’s decision.

B.4    Primary judge’s decision

19    The proceeding was listed before the primary judge on 5 September 2024 for hearing of the application for review of the Registrar’s decision.

20    On that day there was no appearance by or on behalf of the applicant at the hearing. Following an application made by the Minister’s representative, the primary judge made orders: (1) dismissing the originating application, pursuant to r 13.06(1)(c) of the GFL Rules; and (2) requiring the applicant to pay the Minister’s costs in a fixed sum (5 September 2024 orders).

21    On 12 September 2024, the applicant filed an interlocutory application seeking to have the 5 September 2024 orders “set aside and vacated” (first reinstatement application).

22    On 5 November 2024, the first reinstatement application was listed for hearing before the primary judge. On that day there was no appearance by or on behalf of the applicant at the hearing. The primary judge made orders: (1) dismissing the first reinstatement application, pursuant to r 13.06(1)(c) of the GFL Rules; and (2) requiring the applicant to pay the Minister’s costs in a fixed sum (5 November 2024 orders).

23    On 3 December 2024, the applicant filed another application in a proceeding seeking to have the 5 November 2024 orders “set aside and vacated” (second reinstatement application).

24    On 31 January 2025, the primary judge heard the second reinstatement application.

25    On 7 February 2025, the primary judge dismissed the second reinstatement application and published his reasons for doing so as Khan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 139 (J). It is unnecessary to consider those reasons in detail as the applicant’s proposed grounds of appeal to this Court do not correspond with the grounds of review considered by the primary judge.

26    However, of note are the following observations of the primary judge:

Other relevant matters

61    At hearing, primarily for the benefit of the applicant appearing in person, the Minister made oral submissions outlining various provisions within the relevant legislation that governed the proper making of an application for review of the delegate’s decision in the applicant’s case. The Minister explained how the Tribunal had not erred in the making of its decision as it properly:

(a)    identified that the notification letter and delegate’s decision had been given to the applicant by a specified method and received by the applicant on 24 April 2023: ss 66(1), 494B and 494C of the Act;

(b)    identified the relevant statutory provisions which specify that the review application had to be made within the 21 days after the applicant was notified of the delegate’s decision, and then properly applied those provisions when determining that the review application had to be made on or before 15 May 2023: s 347(1)(b) of the Act and reg 4.10(1)(a) of the Regulations; and

(c)    concluded that as the review application was not received by the Tribunal until 20 May 2023, it had not been properly made and the Tribunal had no jurisdiction.

62    The Minister further explained that the notification letter met the applicable requirements of s 66(2) of the Act as it:

(a)    specified the criterion that the applicant did not satisfy which had formed the basis of the refusal to grant the visa;

(b)    gave written reasons why that criterion was not satisfied; and

(c)    stated, by way of information detailed under the headings ‘Review rights’ and ‘Lodging an application for merits review’, that the applicant could seek review of the delegate’s decision at the Tribunal and the time in which that review application had to be made.

63    Having reviewed the Tribunal’s decision, I agree with the Minister and find that the Tribunal’s reasons do not disclose error. Specifically in relation to the validity of the notification letter, I agree with the Minister’s submissions and find that it is not affected by an error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 or BMY18 v Minister for Home Affairs [2019] FCAFC 189.

64    It follows that neither of the grounds disclose, nor has the Court been able to identify, any arguable basis for finding jurisdictional error. Accordingly, this weighs heavily against reinstatement.

Conclusion on reinstatement application

65    Taking into account the above considerations, particularly the absence of any reasonably arguable case of jurisdictional error, I am not satisfied that reinstatement should occur.

66    Accordingly, the reinstatement application is dismissed.

(italic and bold emphasis in original)

27    His Honour made orders accordingly.

B.5    Proceeding in this Court

28    On 7 March 2025, the applicant lodged with this Court an application for extension of time and leave to appeal from the decision of the primary judge. The grounds of that application are as follows (as written):

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.

29    On the same day, the applicant lodged an affidavit that he made and to which was attached a draft notice of appeal, setting out the same two grounds as grounds of appeal.

C.    Consideration

30    The applicant requires leave in three different respects:

(1)    as the primary judge’s order dismissing the reinstatement application is an interlocutory decision, the applicant requires leave to appeal pursuant to ss 24(1)(d) and (1A) the Federal Court of Australia Act 1976 (Cth);

(2)    as an application for leave to appeal must be filed within 14 days after the order was made (r 35.13(a) of the Federal Court Rules 2011 (Cth)) and an application for leave to appeal was not lodged with this Court until 7 March 2025, leave to file out of time is needed. The applicant seeks an order dispensing with the need to comply with r 35.13; and

(3)    as neither of the proposed grounds of appeal was raised before the primary judge, the applicant requires leave to advance those grounds: see, e.g., DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 24; (2024) 302 FCR 25 at 35 [28] (Sarah C Derrington, Goodman and Raper JJ).

31    The factors informing the exercise of the discretions to: (1) extend time to seek leave to appeal; (2) grant leave to appeal; and (3) grant leave to advance new grounds, are well-established. The overriding consideration is the interests of justice.

32    In the present case, the question of the merits of the underlying appeal is determinative of each application for leave, for the following reasons.

33    First, the Tribunal’s reasons evince an orthodox and correct application of the legislative regime identified in its reasons to the facts as disclosed on the material before it. There is no error in the primary judge’s analysis at J[61] to [63]. See also Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; (2018) 267 FCR 15 at 39 [82] (McKerracher, Reeves and Thawley JJ).

34    Secondly, neither of the proposed grounds has merit.

35    The first ground is based on the contention that the Tribunal determined that all of the evidence upon which the applicant’s claim was based was false. There is no such finding and it is to be recalled that the issue for determination was only whether the Tribunal had jurisdiction based upon the timing of the filing of the application for review and that the applicant accepted that his application was filed out time.

36    The second ground contends that the Tribunal misapprehended the evidence and on the basis of that misapprehension made erroneous findings. No misapprehension of the materials before the Tribunal or erroneous finding is apparent; and none has been identified.

37    For all of the above reasons, the underlying application has no merit and the proceeding must be dismissed. There appears to be no reason why costs should not follow the event.

Associate:

Dated:    18 March 2026