Federal Court of Australia

Khan v Minister for Immigration and Citizenship [2026] FCA 1134

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.

2.    Pursuant to Item 10 in Sch 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the Administrative Review Tribunal is substituted for the Administrative Appeals Tribunal as the second respondent.

3.    The notice of objection to competency is upheld.

4.    The appeal is dismissed as incompetent.

5.    The appellant must pay the first respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    These reasons concern a notice of objection to the competency of an appeal brought from a decision of the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) to dismiss an application for an extension of time that the appellant, Ahmed Ali Khan, made under s 477(2) of the Migration Act 1958 (Cth).

2    This matter was allocated to my docket on 28 May 2026. The notice of objection to competency was filed by the first respondent (Minister) on 8 July 2026. The following day, the parties were advised that the hearing that had been listed for the appeal would be solely confined to the determination of the notice. The Minister filed written submissions in support of the notice of objection to competency. Mr Khan, who is unrepresented, did not file any submissions in opposition. The matter was heard on 11 August 2026.

3    For the reasons given below, the notice of objection to competency will be upheld and the appeal will be dismissed as incompetent.

Procedural background

4    Mr Khan is a citizen of Pakistan. He applied for a Student (Temporary) (Class TU) visa in June 2016. A delegate of the Minister refused to grant that visa in November 2016. Mr Khan applied for review of the delegate’s decision in the then Administrative Appeals Tribunal. The Tribunal affirmed the decision at the hearing of the matter on 7 May 2018, delivering written reasons on 13 June 2018.

5    Mr Khan sought judicial review of the Tribunal’s decision in the Circuit Court. He commenced that proceeding on 22 June 2018, some 11 days outside of the 35-day limit prescribed in s 477(1) of the Migration Act. Mr Khan thus sought an extension of time under s 477(2) of the Act. That provision empowers the Circuit Court to extend the time limit as it considers appropriate if the application meets certain formal requirements, and if the Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

6    In his reasons at [1], the primary judge recorded that Mr Khan made his application under s 477(2). The hearing before his Honour was conducted on the basis that it was solely to determine the application for an extension of time, and not the substantive merits of the application for judicial review.

7    The primary judge found that Mr Khan may have had a reasonable excuse for the delay. But after considering the merits of the application for judicial review (as far as necessary for an application for extension of time), his Honour found that it was not reasonably arguable on either of the two grounds that could be discerned in the application. His Honour therefore held that it would not be necessary in the interests of the administration of justice to extend time.

The purported appeal

8    The orders the Circuit Court made were to dismiss the application for an extension of time and that Mr Khan pay the Minister’s costs, fixed in the amount of $4,189.

9    Those are the orders from which Mr Khan now seeks to appeal. He raises two grounds of appeal to the effect that the Circuit Court should have found that the Tribunal erred in certain ways.

10    The Minister objects to the competency of the appeal on the following basis (para 4 of the notice of objection to competency):

The application to appeal from the orders of the primary judge is incompetent, as s 476A(3)(a) of the [Migration Act] provides that despite s 24 of the Federal Court of Australia Act 1976 (Cth), an appeal may not be brought to the Federal Court from a judgment of the Federal Circuit and Family Court of Australia (Division 2) that makes an order or refuses to make an order under subsection 477(2): s 476A(3)(a) of the [Migration Act].

The appeal is incompetent

11    Section 476A(3) of the Migration Act relevantly provides:

Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a)    a judgment of the Federal Circuit and Family Court of Australia (Division 2) that makes an order or refuses to make an order under subsection 477(2) ...

12    The orders Mr Khan seeks to appeal from are orders of that kind. While the orders do not say in terms that the application was dismissed pursuant to s 477(2) of the Migration Act, it is clear from the primary judge’s reasons and all the context set out above that it was dismissed under that provision.

13    It therefore follows that s 476A(3)(a) of the Act precludes an appeal from the decision being brought in this Court: see BDA16 v Minister for Home Affairs [2019] FCA 85 at [16]-[17] (Griffiths J) and the authorities cited there. It is not appropriate in those circumstances to enter into the merits of the purported appeal.

14    Conscious that Mr Khan does not have legal representation, I sought to explain the situation to him at the hearing, and invited him to say anything he wished to say about it. Understandably, he was not able to make any substantive response. He sought to explain to me the reason for his delay in commencing the Circuit Court proceeding, but while that formed part of the basis of the primary judge’s decision, it does not address the question of whether it was possible to appeal from that decision. For the reasons just given, it is clear that it is not possible.

15    Given that Mr Khan does not have legal representation, I have considered whether it is reasonably open to construe the appeal as an application for judicial review of the primary judge’s decision, despite the fact that a form 121 notice of appeal has been used. It is not reasonably open to read the notice of appeal that way. Both of Mr Khan’s purported grounds allege error on the part of the primary judge in failing to find that the Tribunal fell into jurisdictional error. There is no suggestion that the primary judge fell into jurisdictional error himself. It would not be appropriate for this Court to rewrite or reconstruct the notice of appeal to convert it into an application that was open to be made, or to give Mr Khan advice on any steps he might take next. That is up to him.

16    The appeal must be dismissed as incompetent. Mr Khan will be ordered to pay the Minister’s costs, to be taxed if not agreed.

Associate:

Dated:    13 August 2026