Federal Court of Australia

Singh v Minister for Immigration and Citizenship [2026] FCA 1131

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The Applicant pay the First Respondent’s costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BUTTON J:

1    This is an application for an extension of time in which to appeal, and for leave to appeal, from the judgment of a judge of the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA (Div 2)) in Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1309 (J). The primary judge refused the Applicant’s application for an extension of time in which to file an application for review of a Registrar’s decision. The Registrar of the FCFCoA (Div 2) had dismissed the Applicant’s application for judicial review on a summary basis.

2    The relevant background may be stated shortly:

(1)    The Applicant is a citizen of India. He applied for an Employer Nomination (Permanent) (subclass 186) visa under the Temporary Residence Transition stream.

(2)    He was nominated for the position of restaurant manager by his employer at “Berwick Indian @ The Courthouse”.

(3)    A delegate of the Minister refused to grant the Applicant the visa in question on the basis that he did not meet the requirements of cl 186.223 of Sch 2 to the Migration Regulations 1994 (Cth). That was because the underlying nomination had been refused by a delegate for the Minister for Home Affairs, the consequence being that the delegate was not satisfied that the position to which the application related was the subject of an approved nomination identifying the Applicant.

(4)    The Applicant applied to the Tribunal for review of the delegate’s decision. The Applicant appeared before the Tribunal, gave evidence and presented arguments. The Tribunal affirmed the delegate’s decision and gave written reasons (T).

(5)    As the Tribunal explained (T [9]–[10]), cl 186.223 requires (amongst other things) that the position to which the visa application relates must be the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant, and the nomination must have been approved.

(6)    The Tribunal reasoned that, because the nomination relevant to the Applicant had been refused by a delegate, and that decision had been affirmed on review by the Tribunal, it was required to find that the position to which the application related was not the subject of an approved nomination, cl 186.223 was not met, and the decision under review was to be affirmed (T [16]–[19]).

(7)    The Applicant filed an application for judicial review in the FCFCoA (Div 2), advancing 10 grounds of review. That application was summarily dismissed by a Registrar, pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCoA Rules). That rule provides for summary dismissal on various grounds, one of which is where the Court is satisfied that the prosecuting party has no reasonable prospect of successfully prosecuting the proceeding or claim.

(8)    The Registrar’s summary dismissal determination was made on 8 July 2025. According to r 21.02(1) of the FCFCoA Rules, any application for review of the Registrar’s decision had to be filed within seven days. The Applicant’s application for review was filed 17 days out of time.

(9)    The Applicant applied to the primary judge for an extension of time.

(10)    The primary judge refused the application for an extension of time. Had the review proceeded, it would have been determined by the primary judge de novo.

(11)    The Applicant now seeks to appeal, in this Court, the primary judge’s refusal of an extension of time.

3    The Applicant’s application to this Court for leave to appeal the primary judge’s refusal of an extension of time was itself filed out of time. Pursuant to r 35.13 of the Federal Court Rules 2011 (Cth), the application for leave to appeal was required to be filed within 14 days. On the facts of this case, the application was due by 29 August 2025, but was filed on 8 September 2025, some 10 days outside the prescribed period.

4    The issues for determination are as follows:

(a)    Should an extension of time in which to file the application for leave to appeal be granted?

(b)    If so, should the application for leave to appeal be granted?

(c)    If leave to appeal should be granted, ought the appeal be allowed?

5    The Minister filed written submissions. The Applicant, who is a litigant in person, did not avail himself of the opportunity to file written submissions. The Applicant appeared in person at the hearing of his application. I invited the Applicant to explain why his application to this Court was made late, and also why he contended that the primary judge erred in rejecting his application for an extension of time in the Court below. The Applicant made submissions on these points, which I refer to further below, and tendered a collection of emails from the Court’s Registry, which he relied on in explaining the lateness of the application in this Court. The Minister did not object to the tender of those emails.

6    As the Applicant’s oral submissions detailed, his substantive complaint is that he has worked hard and done everything necessary to qualify to apply for the visa in question. He says that, through no fault of his own, the approved nomination connected with his employer was wrongly allocated by the Department to another person, and that was done without proper checks having been undertaken. I explained to the Applicant that this Court cannot make a different decision just by reference to the merits. The Applicant was not able to identify any legal error in the Tribunal’s reasons, or the approach of the primary judge, beyond the matters referred to in his affidavit and proposed grounds of appeal.

7    The Applicant relied on an affidavit dated 8 September 2025 in support of his application for an extension of time and for leave to appeal. In respect of the issue of delay, the Applicant deposed that he has suffered from migraines and depression for years, causing pain, fatigue, difficulty concentrating and inability to perform basic tasks during acute episodes. He continued (quoted as per original):

My health conditions directly caused my lack of critical actions in timely manner and also very complex court procedures, especially the period from mid July onwards till today was particularly severe due to that I was frequently gets so overwhelmed and get panicked makes me incapable of understanding complex deadlines or even form requirements.

As a self represented litigant, I found the process of the court system is so complex that my mental health challenges including brain fog make it worse to comprehend even though I contacted court registry very often in last month and half attempting to gather all relevant strict policies and procedures of the Court.

8    The Applicant’s affidavit did not detail his contact with the Court’s Registry, or annex any correspondence with the Registry. During the hearing, I allowed the Applicant to tender emails that he had in Court, which the Applicant said showed his efforts to obtain information from Registry about filing deadlines. The emails tendered had various dates between 16 and 31 July 2025. All of those emails were emails from the Registry — it is not apparent what enquiries they were sent in response to — and also predated the hearing before the primary judge. As such, the emails do not show any attempts to contact the Registry for information about how long the Applicant had to lodge an appeal or application for leave to appeal the primary judge’s decision. To the extent that the content of those emails is relevant at all, the emails put the Applicant on notice that applications to this Court for leave to appeal from an interlocutory decision of a judge of the FCFCoA (Div 2) had to be filed within 14 days.

9    The affidavit also annexed the Applicant’s proposed grounds of appeal, which were in the following terms (quoted as per original):

1.    The honourable judge errored in exercise his discretion to refuse an extension of time by failing to give any adequate weigh to my (appellant) statutes as unpresented litigant and the impact of my mental health condition to comprehend the strict 7 day limit in accordance the principals in Bala v minister of immigration & border protection [2019] FCA 600.

2.    The honourable judge also ignored my serious efforts to access information to appeal further by contacting a MARA agent 26th June 2025 and contacting federal court via phone enquiries on 16th ,30th July 2 and on 31july 2025, no one told me informed me about 7 days time limit other than the honourable judge during the hearing.

3.    The exercise of discretion to refuse an extension of time was legally unreasonable (minister of immigration and border protection v SZVFW [2018] HCA 30 in the circumstances, where

a)     the delay was relatively short 17days;

b)     I have made enquiries to various sources including court registry.

4.    Not addressing the core and specific jurisdictional error in decision by the AAT (admirative review tribunal) and immigration department (home affairs) both did not apply procedural fairness and accuracy by approving someone else nomination whereas that person was not working there. I am getting more information on that in the due course. which can potentially change the course of my case and others too.

5.    Adopting unduly restrictive approach with inconsistent the ' no reasonable prospect success standard SZMDS [2010] HCA 16

6.    The honourable judge also ignored my inability to present my case efficiently due to my prolonged mental and physical health conditions due to various factors family separation since 2016. Minister for immigration v WZARH [2016] HCA 40

7.    The administrative review tribunal made jurisdictional error by not addressing the unfairness in procedurals by immigration department in approving nomination prior any firm checks.

10    I proceed on the basis that, in considering whether to grant an extension of time to the Applicant in respect of his late application to this Court, it is relevant to consider the length of the delay, the reasons advanced for the delay, any prejudice to the Minister, and the prospects of the application for which the extension is sought (here, an application for leave to appeal and, if granted, to appeal the primary judge’s refusal of an extension of time in the FCFCoA).

11    The delay in this case was moderate — 10 days — but the magnitude of a litigant’s delay is to be considered in the context of the prescribed timeframes (here, 14 days). The Applicant’s explanation for the delay is meagre. Before the FCFCoA, the Applicant exhibited correspondence with the Registry regarding timelines for his application to review the Registrar’s decision. No similar supporting material has been provided to this Court, notwithstanding that the affidavit’s claims that the Applicant contacted the Registry “often” in the past month. As mentioned above, the only correspondence from the Registry that the Applicant has provided predated the hearing before the primary judge and, in any event, alerted the Applicant to the relevant 14 day time limit.

12    The Applicant has also not put on any supporting medical evidence, such as a note from a general practitioner, concerning his migraines and depression, episodes of which he appears to say coincided with the period when the clock was running on the 14 day period. Against those matters, I accept that, as a self-represented litigant, navigating court procedures can be daunting.

13    The Minister has accepted that the delay has not caused any specific prejudice to him, beyond compromising his interest in the timely resolution of visa applications and related proceedings.

14    The final consideration is the prospects of the intended application. The intended application is for leave to appeal. On an extension of time application, the prospects are usually addressed at a relatively impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62] (Mortimer J), approved on appeal MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110 at [38] (Tracey, Perry and Charlesworth JJ). While there may be occasions when a more in-depth analysis of the merits of grounds is appropriate — as to which see Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (Katoa) at [12]–[20] (Kiefel CJ, Gageler, Keane and Gleeson JJ) — this is not such a case.

15    The decision of the primary judge to refuse an extension of time was a discretionary interlocutory decision. Even if the Applicant were to be granted an extension of time, and were to be granted leave to appeal, he could only succeed if he could establish an error of the kind referred to in House v R (1936) 55 CLR 499; [1936] HCA 40 (House v R) at 504–5 (Dixon, Evatt and McTiernan JJ), specifically: that, in refusing an extension of time, the primary judge acted on a wrong principle, allowed extraneous or irrelevant matters to guide the decision, mistook the facts, failed to take into account a material consideration or arrived at a decision that was plainly unreasonable or unjust.

16    The primary judge reasoned, as follows, in refusing the application for an extension of time:

(1)    The primary judge correctly identified the factors to be taken into account in considering the application for an extension of time, by reference to Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 186 and Katoa at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ): J [38].

(2)    The primary judge considered the 17 day delay to be “modest”, and set out the evidence put forward by the Applicant for that delay at some length: J [43]–[49]. While accepting that the information given to the Applicant by the Court’s Registry may have contributed to the Applicant’s confusion about deadlines, the primary judge noted that the Applicant had not even contacted the Registry before the application was already out of time. The primary judge concluded that the factor — explanation for the delay — weighed against the granting of an extension of time.

(3)    The primary judge next considered the question of prejudice, finding that the factor was neutral in view of there being no substantial prejudice to the Minister: J [51]–[52].

(4)    The most substantial portion of the primary judge’s analysis was concerned with the merits of the grounds of review that the Applicant sought to advance in the application for judicial review of the Tribunal’s decision: J [53]ff. The primary judge described each of the 10 articulated grounds of review, several of which were narrative statements, rather than grounds of review per se. In respect of each ground of review the primary judge stated the ground and why it did not establish a reasonably arguable case of jurisdictional error on the part of the Tribunal.

(5)    The primary judge further addressed, in view of the Applicant being unrepresented, whether there was any other discernible error on the part of the Tribunal, and considered that there was not: J [74].

(6)    The final matter that the primary judge addressed was the futility of the Applicant’s case: J [75]–[76]. The short point was that, because the Applicant did not have an approved employer nomination, the Tribunal had no alternative but to affirm the delegate’s decision; there simply was no other possible outcome, meaning that it would be futile to remit the matter to the Tribunal even if the Applicant were to establish error. The primary judge situated futility as a further, and independent, reason why the application should be dismissed.

17    In considering the merits of the Applicant’s intended application for leave to appeal, the question concerns the ostensible merits of the contention that the primary judge’s course of reasoning involved a House v R error.

18    The first matter raised by the proposed grounds of appeal is that the primary judge gave inadequate weight to the Applicant’s status as an unrepresented litigant and the impact of his mental health in relation to his failure to comprehend the strict seven day time limit.

19    The second matter raised by the proposed grounds of appeal is a contention that the primary judge “ignored” the Applicant’s efforts to access information by contacting a “MARA agent” — I take “MARA” to refer to the Migration Agents Registration Authority — on a specified date.

20    There is no merit in these two grounds. The primary judge did consider the evidence put forward by the Applicant concerning the reasons for the delay in filing his application in the FCFCoA, insofar as his affidavit contained emails from the Court’s Registry in response to telephone enquiries made by the Applicant. The primary judge also took into account (J [45]) that the Applicant said he had attempted to contact a migration agent. I invited the Applicant to detail what he told the primary judge about having contacted the migration agent, and the Applicant answered to the effect that it was just about him having tried to contact an agent; he did not suggest any further evidence was before the primary judge about the nature of those enquiries. The Applicant did not, however, raise mental health matters before the primary judge.

21    The first ground is explicitly a complaint about the weight accorded to a matter by the primary judge, and the second ground suggests that matters were ignored by the primary judge which were either not ignored, or which the Applicant has not shown were put before the primary judge. No plausible House v R error has been identified.

22    The third matter raised by the proposed grounds of appeal is that the primary judge’s refusal of an extension of time was legally unreasonable where the delay was relatively short and the Applicant had made enquiries of various sources. This intended ground also lacks any evident merit. The primary judge took those matters into account and the fact that the Applicant considers the primary judge should have come to a different conclusion does not identify any plausible House v R error.

23    The fourth matter raised by the proposed grounds of appeal is that the primary judge did not address the “core and specific jurisdictional error in decision by the AAT (admirative [sic] review tribunal) and immigration department (home affairs) both did not apply procedural fairness and accuracy by approving someone else [sic] nomination whereas that person was not working there”. This was not a matter argued before the primary judge. The failure to consider a matter not put does not give rise to a plausible House v R error.

24    In any event, the matter complained of goes to background facts as to why the nomination was not approved, but does not expose any potential ground of judicial review given that the refusal of approval of the nomination concerning the Applicant was the subject of a different decision by the Minister’s delegate, which itself was the subject of an unsuccessful review application before the Tribunal.

25    The fifth matter raised by the proposed grounds of appeal is that the primary judge adopted an “unduly restrictive approach” inconsistent with the “no reasonable prospect success standard SZMDS [2010] HCA 16”. As it was not clear what the Applicant intended to contend by this ground, and how it is said that the primary judge adopted an “unduly restrictive approach”, I asked the Applicant to explain this ground during the hearing. He explained that it referred to the same overarching concern as he had identified in connection with the fourth proposed ground of appeal — in substance that he had not done anything wrong and someone else had been effectively allocated the approved nomination that should have been allocated to him. This concern goes to the merits of a different decision — the decision not to approve the nomination in respect of the Applicant — and does not expose any plausible House v R error in how the primary judge addressed the application before him.

26    The sixth matter raised by the proposed grounds of appeal contends that the primary judge ignored the Applicant’s inability to present his case efficiently due to his “prolonged mental and physical health conditions due to various factors family separation since 2016”. The Applicant did not claim before the primary judge that his ability to present his case was compromised in this way. The failure to consider a matter not raised before the primary judge does not give rise to a plausible House v R error.

27    The seventh, and final, matter raised by the proposed grounds of appeal contends that the Tribunal engaged in jurisdictional error by not addressing unfairness in the procedure of the Department “in approving nomination prior any firm checks”. As it was not entirely clear what the last part of the ground is referring to, I asked the Applicant to explain this proposed ground during the hearing. The Applicant explained that it was about the Department not having checked who was getting the benefit of the employer’s approved nomination. I have already explained that this complaint goes to the merits of a different decision.

28    In any event, the ground appears directed to a criticism of the Tribunal that asserts the Tribunal failed to address unfairness in the conduct of the Department. However, the Tribunal was not tasked with engaging in a review of the fairness of procedures adopted by the Department. Rather, its task was an administrative one, namely to decide whether to affirm or vary the decision of the delegate. Further, this point was not raised before the primary judge and the failure of the primary judge to consider a matter not put as part of an application for an extension of time does not give rise to a plausible House v R error.

29    It follows that the grounds of appeal that the Applicant seeks to advance, were he to obtain an extension of time, and leave to appeal, do not have any apparent merit, even on their own terms. In addition, none of the grounds takes issue with the primary judge’s conclusion that, whatever the merits of the Tribunal’s decision, it would be futile to remit it to the Tribunal and, on that basis alone, an extension of time would be refused.

30    For these reasons, and principally because of the lack of apparent merit in the proposed application for leave to appeal, an extension of time will be refused. While not necessary to consider in light of this determination, if an extension of time were granted, I would refuse leave to appeal on the basis that the decision below is not attended with sufficient doubt to warrant reconsideration: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 at 398–9 (Sheppard, Burchett and Heerey JJ).

Associate:

Dated:    13 August 2026