Federal Court of Australia

Rehman v Minister for Immigration and Citizenship [2026] FCA 1161

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 within which to file a notice of appeal be dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $4,150.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION

1 This is an application by Mr Muhammad Abdur Rehman for an extension of time in which to appeal from orders of the Federal Circuit and Family Court of Australia (Division 2) made on 17 April 2025. The primary judge dismissed Mr Rehman’s application for judicial review of a decision of the second respondent (Tribunal) and ordered him to pay the first respondent’s costs fixed in the sum of $6,500.

2 When the matter was called on for hearing, there was no appearance on behalf of the applicant. In those circumstances, an application was made on behalf of the Minister to dismiss the present application. I was in the course of delivering reasons acceding to that application when my chambers received a communication that Mr Rehman wished to participate by way of telephone. He said he could not appear in person because he had a “bad back”.

3 An interpreter had previously been assigned to assist Mr Rehman, and I arranged for him to be contacted on the mobile telephone number he provided. It became evident from speaking to Mr Rehman that his facility in English was sophisticated, and he did not require the assistance of an interpreter, who was then excused. The Minister subsequently withdrew the application for dismissal.

4 It became apparent that Mr Rehman had apparently gone to the Court’s facilities in Parramatta, rather than attending at the appointed place for hearing. This was somewhat unfortunate in circumstances where he had been advised expressly as to the location of the hearing; however, I was able to accommodate him appearing by way of telephone.

5 The proposed appeal is 12 days out of time. That delay is short and the first respondent (Minister) accepts that there is no particular prejudice if time is extended, beyond the costs of responding and the public interest in finality. The determinative issue, however, on the application to extend time to appeal seems to me to come down to the question of whether there is sufficient merit to justify enlarging the time for appeal.

B    THE FACTUAL BACKGROUND

6 Mr Rehman is a citizen of Pakistan. On 6 March 2019 he applied for a Student (Temporary) (Class TU) visa on the basis of his enrolment in a Bachelor of Business Information Systems. A delegate of the Minister refused the visa on 2 May 2019 because the delegate was not satisfied that the financial capacity criterion in cl 500.214 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) was met.

7 Mr Rehman applied to the Tribunal for merits review on 23 May 2019. On 30 October 2020 the Tribunal obtained information from the Provider Registration and International Student Management System (PRISMS) indicating that Mr Rehman was not then enrolled in a course of study in Australia.

8 On 2 November 2020 the Tribunal invited Mr Rehman, pursuant to s 359A of the Migration Act 1958 (Cth) (Act), to comment on or respond to that information. The invitation required a response by 16 November 2020. The Tribunal explained that any request for an extension had to be received by that date and warned that, if a response was not provided within the period allowed or as extended, the Tribunal might decide the review without taking further action to obtain his views and he might lose any entitlement to appear before the Tribunal.

9 The material shows (and it is not in contest before me) that Mr Rehman did not respond substantively or seek an extension by 16 November 2020. The evidence (Exhibit B, p 67) records an email from Mr Rehman to the Tribunal’s National Registry mailbox sent on 17 November 2020 at 11.36 pm, seeking a further extension of seven days. A Tribunal letter dated 20 November 2020 subsequently records that the request was received on 18 November 2020. That obviously reflects the fact that the material was received after hours, but, in any event, on any view of it, the request was made after the prescribed period had expired.

10 During oral submissions today, Mr Rehman asserted that this tardiness was the result of an unspecified failure by a migration agent. There is every reason to doubt whether his recollection is correct in this respect.

11 Apart from the fact that the email itself was sent directly by Mr Rehman (and not an agent), neither the application for review before the Tribunal nor the student visa application in evidence records that any representative was acting on behalf of Mr Rehman. In any event, this issue can be left to one side for present purposes.

12 What relevantly matters is that the Tribunal affirmed the delegate’s decision on 18 November 2020. Its conclusion was that Mr Rehman had not satisfied cl 500.211 of Sch 2 to the Regulations because it was not satisfied that he was enrolled in a registered course of study at the time of decision.

13 Mr Rehman then sought judicial review in the Federal Circuit and Family Court. He required an extension of time to commence that proceeding. On 17 April 2025 the primary judge granted that extension but dismissed the substantive application for judicial review.

C    THE PRIMARY JUDGE’S DECISION

14 The primary judge’s reasons were published as Rehman v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 542.

15 Ultimately, the primary judge held that the Tribunal’s s 359A invitation complied with the relevant statutory requirements; that Mr Rehman did not respond within the specified period; and that his later request for an extension did not identify the information he proposed to provide or when it would be provided. His Honour also noted that the PRISMS material before the Tribunal indicated that Mr Rehman was not enrolled in a registered course of study.

16 The primary judge then concluded that: (a) s 359C(2) of the Act permitted the Tribunal to proceed without taking further action to obtain Mr Rehman’s views; (b) s 360(3) deprived him of an entitlement to appear; and (c) s 363A left the Tribunal without power to permit an appearance. His Honour also rejected grounds seeking to place additional material before the Court or to obtain a fresh opportunity to establish that Mr Rehman was a genuine student (because the Court was exercising judicial review rather than merits review).

D    THE PROPOSED GROUNDS

17 Having noted that the determinative issue on the application for an extension of time is the merits of the underlying appeal, it is appropriate to turn immediately to the proposed grounds. They are set out in the material filed by Mr Rehman, annexed to his affidavit sworn on 29 May 2025 and accompanied by a document headed “Statement of Appeal”.

18 The five proposed grounds can be stated shortly. First, ground one asserts that the Tribunal denied Mr Rehman procedural fairness by proceeding under ss 359C and 360(3) without allowing him to be heard, notwithstanding his explanation and request for an extension made shortly after the deadline. Secondly, ground two asserts that the Tribunal acted with legal unreasonableness in declining to extend the 14-day response period under s 359B of the Act, having regard to his explanation for delay, including COVID-19-related difficulties and delays obtaining documents from his education provider. Thirdly, ground three contends that the Tribunal applied s 363A of the Act rigidly and automatically and should instead have considered whether, in the interests of procedural fairness and justice, an extension should be granted under s 359B or some residual discretion exercised differently. Fourthly, ground four asserts that the primary judge wrongly characterised Mr Rehman’s complaints concerning procedural unfairness, denial of a hearing and exclusion from participation as matters of merits review rather than jurisdictional error. Fifthly, ground five contends that the Tribunal and the primary judge failed to take account of Mr Rehman’s efforts to comply with procedural requirements, his status as a self-represented litigant and the broader humanitarian circumstances of his education and financial position, rendering the decision legally unreasonable.

D.1    Ground One

19 Ground one is answered by the statutory scheme. Section 359B of the Act required a response to a written invitation to be given within the applicable period. Although s 359B(4) conferred a power to extend that period, the Full Court held that the power is not available after the prescribed period has expired: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 (at 417 [27]–[28] per Jacobson, Gilmour and Foster JJ).

20 Here, Mr Rehman neither provided a response nor sought an extension by 16 November 2020. Section 359C(2) therefore permitted the Tribunal to make a decision on the review without taking any further action to obtain his views on the adverse information. Section 360(2)(c) displaced the ordinary obligation to invite him to appear and s 360(3) provided that he was not entitled to appear.

21 Section 363A completed that statutory sequence. Once s 360(3) operated, the Tribunal had no residual power to permit Mr Rehman to appear. As the Full Court further explained in Hasran (at 417 [29]), the operation of s 360(3) attracted the express prohibition in s 363A.

22 It follows that the fact Mr Rehman sought an extension shortly after the deadline did not preserve a right to an oral hearing or create a discretion to permit one. Ground one therefore does not disclose sufficient merit to support an extension of time.

D.2    Ground Two

23 Ground two rests on the premise that the Tribunal retained a discretion to extend the response period after 16 November 2020 and was required to exercise that discretion reasonably having regard to Mr Rehman’s circumstances. That premise is inconsistent with Hasran. His COVID-19-related difficulties and the asserted delay in obtaining documents might have been matters capable of supporting a timely request for an extension, but they could not revive a statutory power that had ceased to be available once the prescribed period expired. Nor does the operation of the statutory consequence become legally unreasonable merely because its effect was adverse. Ground two therefore lacks sufficient merit.

D.3    Ground Three

24 Ground three fails for a related but distinct reason. Section 363A of the Act is expressed in prohibitory terms. Once s 360(3) provided that Mr Rehman was not entitled to appear, s 363A deprived the Tribunal of power to permit him to do so. Describing that operation as “rigid” or “automatic” does not identify jurisdictional error; it describes the consequence Parliament prescribed. The asserted interests of procedural fairness could not supply a discretion which the statute withdrew. Ground three therefore lacks sufficient merit.

25 Accordingly, although grounds one to three are framed respectively in terms of procedural fairness, legal unreasonableness and constructive failure to exercise jurisdiction, each encounters the same insuperable statutory sequence, and none provides a reasonably arguable basis for disturbing the primary judge’s conclusion.

D.4    Ground Four

26 Ground four should also be rejected. The primary judge’s reasons are to be read fairly and as a whole, and not with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). So read, his Honour did not characterise the procedural fairness complaint itself as an invitation to merits review. His Honour dealt separately with the grounds concerning the s 359A invitation and the asserted denial of a hearing, and rejected them by reference to ss 359A, 359C, 360 and 363A of the Act. It was the further grounds seeking an opportunity to provide new material and establish that Mr Rehman was a genuine student that were characterised as inviting merits review.

27 That distinction was orthodox. The Court below was concerned with whether the Tribunal’s decision was affected by jurisdictional error, not with whether Mr Rehman should on the merits have been granted another opportunity to establish the visa criteria. Ground four therefore does not disclose sufficient merit.

D.5    Ground Five

28 Ground five alleges that the Tribunal and the primary judge failed to take account of Mr Rehman’s efforts to comply, his status as a self-represented litigant and the broader humanitarian context of his education and financial circumstances. Insofar as the ground is directed to the Tribunal and advances a contention not raised before the primary judge, leave is required. Leave to raise a point for the first time on appeal should only be granted where it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (at 598–599 [46]–[48] per Kiefel, Weinberg and Stone JJ).

29 Even allowing for the latitude appropriately afforded to a self-represented litigant, the proposed ground does not identify a legally relevant consideration which the statutory scheme required the Tribunal to take into account in determining whether Mr Rehman retained an entitlement to appear. The matters relied upon principally concern the practical consequences of the visa refusal and his reasons for wishing to put further material before the Tribunal. They do not identify legal error in the Tribunal’s application of ss 359C, 360 and 363A, nor appealable error in the primary judge’s conclusion that no such jurisdictional error had been established.

30 In those circumstances, I would not grant leave to advance ground five in any new form. In any event, its lack of substantive merit weighs strongly against granting the extension of time.

E    CONCLUSION

31 The delay is short and there is no particular real prejudice to the Minister. Those matters favour Mr Rehman. Although his explanation for the delay is not compelling, I would have been inclined to grant the extension in circumstances where the proposed appeal had some merit. For the reasons I have explained, however, considering the matter as a whole, I am not persuaded that the interests of justice warrant extending the time to appeal in order to agitate a futile appeal.

32 The application for an extension of time will therefore be dismissed. The Minister seeks costs fixed in the sum of $4,150.

33 Mr Rehman submitted that his family had encountered financial hardship and that he would prefer not to pay the Minister’s costs.

34 Although that submission is understandable, there is no principled reason why costs should not follow the event. The amount sought is proportionate for a short migration application of this kind and I will fix the first respondent’s costs in the sum of $4,150.

Associate:

Dated: 18 August 2026