Federal Court of Australia

Surender v Minister for Immigration and Citizenship [2026] FCA 1276

ORDERS

THE COURT ORDERS THAT:

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

2.    The name of the second respondent be amended to ‘Administrative Review Tribunal’.

3.    The application for leave to appeal be dismissed.

4.    The applicant pay the costs of the first respondent, as agreed or taxed.

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

REASONS FOR JUDGMENT

DOWLING J:

Introduction and background

1    The applicant, Mr Chenigari Surender, seeks leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2): Surender v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 765 (the primary judgment). That decision dismissed an application for review of a decision of a Judicial Registrar of the Federal Circuit and Family Court. The Judicial Registrar’s decision summarily dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal’s decision affirmed a decision of a delegate of the Minister for Home Affairs to refuse to grant the applicant a Student (subclass 500) visa.

2    The relevant background to the application in this Court is as follows.

3    On 19 April 2021, the applicant applied for a Student (Temporary) (class TU) (subclass 500) visa.

4    On 12 August 2021, the Department of Home Affairs requested that the applicant provide a Form 80 (Personal particulars for assessment including character assessment) within 90 days. The applicant did not provide the form. On 10 November 2021, the Department requested for a second time that the applicant provide a Form 80 within 90 days. Again, the applicant did not provide the form.

5    On 17 August 2022, a delegate of the Minister refused the applicant’s visa application on the basis that he did not satisfy cl 500.217 of Sch 2 to the Migration Regulations 1994 (Cth). Clause 500.217 required the applicant to meet Public Interest Criterion 4001 (PIC 4001). The delegate determined that the applicant did not satisfy PIC 4001 because he had not provided a Form 80 and therefore did not meet the prescribed criterion in reg 2.03AA(2)(b) of the Regulations which mandates an applicant to provide a completed Form 80 upon request.

6    On 6 September 2022, the applicant lodged an application for merits review of the visa refusal decision in the Tribunal. The Tribunal application form sought the contact details of the ‘Individual applying for review’. The applicant provided his email address ending xxxhas56@gmail.com. That is the same email address provided by the applicant in this Court. In the Tribunal application form, under the heading ‘Representative details’, it stated:

The person seeking review can deal with the AAT directly or can have someone represent them and act on their behalf.

NOTE: If you appoint a representative, we will assume you are also authorising that person to be your authorised recipient of correspondence/ documents from us on your behalf in relation to your application.

Is a representative being appointed to act on the applicant’s behalf and to be the authorised recipient? *

7    That question was answered ‘No’. Under the heading ‘Recipient details’, the form asked, “Where should the AAT send correspondence about this application?”. The applicant responded, “To the review applicant”.

8    On 2 March 2023, the Tribunal sent, to the applicant’s nominated email address, a letter under s 359A of the Migration Act 1958 (Cth). The letter invited the applicant to provide a completed Form 80, a blank copy of which was attached to the letter. The letter invited the applicant to provide the form by 16 March 2023. It stated that if the applicant did not provide the form or request an extension by that date, the applicant would lose his entitlement to a hearing. The applicant did not respond to the Tribunal’s letter.

9    On 17 March 2023, the Tribunal informed the applicant that he had lost his entitlement to a hearing, and that the Tribunal would make its decision based on the material before it. The Tribunal again invited the applicant to provide a Form 80 by 3 April 2023. The applicant did not respond to the Tribunal.

10    On 6 April 2023, the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa. The applicant was notified of the Tribunal’s decision on 11 April 2023 by a letter which attached the Tribunal’s decision, sent to the applicant’s nominated email address.

11    On 10 May 2023, the applicant sought judicial review in the Federal Circuit and Family Court of the Tribunal’s decision.

12    On 17 May 2024, a Judicial Registrar of the Federal Circuit and Family Court dismissed the judicial review application on the basis that the application had no reasonable prospects of success: Surender v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 442.

13    On 6 June 2024, the applicant filed an application for review of the Judicial Registrar’s decision. That application for review was filed outside the seven-day time limit prescribed by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (FCFCOA Rules).

14    The primary judge heard the application for review of the Judicial Registrar’s decision on 10 July 2024, at which point the applicant, who was then represented by a lawyer, sought and was granted an adjournment until 12 August 2024. Following that second hearing, the primary judge on 21 August 2024 determined that the application was incompetent and dismissed it, as she explained that:

(a)    the review application was filed after the expiry of the statutory timeframe meaning, absent consent, leave of the Court was required in order for the matter to proceed;

(b)    the applicant was afforded an adjournment of the first review hearing and an opportunity to file an amended application, evidence and submissions in support of a request for an extension of the statutory timeframe within which the application was to be made. There was further opportunity to address the issue at the second review hearing. At the conclusion of the second review hearing, there was no amended or oral application before the Court for orders extending the time for filing of the application for review of the Judicial Registrar’s decision; and

(c)    as the review application was filed out of time it is not competent and is taken to be dismissed.

15    Though the application was dismissed on the basis that it was incompetent, the primary judge went on to consider whether the Federal Circuit and Family Court would otherwise allow the applicant an extension of time had one been sought. The primary judge considered the following factors: duration of the delay, the explanation for the delay, prejudice and the public interest and the merits of the substantive application. The primary judge concluded that even if there was a competent application before the Court, she would not have been minded to extend the time for filing.

16    It is illustrative to refer to the primary judge’s findings on the merit of the application. The primary judge found that the grounds of the application did not identify any reasonably arguable jurisdictional error in the Tribunal’s decision. The primary judge found that:

(a)    the Tribunal correctly identified that the applicant had not met PIC 4001 as was required for the purpose of cl 500.217 of the Regulations;

(b)    the applicant’s argument which sought to allege error on the part of his then migration agent could not succeed on the material before the Federal Circuit and Family Court because in his application for review made to the Tribunal, the applicant included his own contact information and there was no evidence as to why that email address was not an appropriate means of communication with the applicant;

(c)    the absence of a response to the Tribunal’s invitation to provide a Form 80 effectively precluded the Tribunal from inviting the applicant to attend a hearing and the s 359 letter met the statutory requirements. Accordingly, there was no unreasonableness or denial of natural justice;

(d)    the applicant’s contentions of bias and his contention that the Tribunal failed to make an obvious inquiry were insufficiently particularised to have any prospect of success; and

(e)    absent satisfaction as to the essential criterion in cl 500.217, the Tribunal was obliged to affirm the delegate’s decision to refuse the applicant’s application for a student visa.

17    On 4 September 2024, the applicant filed in this Court an application for leave to appeal from the primary judgment, together with an affidavit in his name and a draft notice of appeal.

18    On 17 October 2024, Registrar McCormick made directions concerning the timetabling of this proceeding. On 25 October 2024, the applicant filed an amended draft notice of appeal, the formatting of which differed slightly from the original draft notice of appeal. It was otherwise substantially the same, aside from the addition of grounds 31 a. to t. (discussed below).

19    On 1 November 2024, the Minister filed the application book pursuant to the directions which contained, amongst other things, a copy of the Tribunal’s decision record and statement of reasons and the primary judgment. The directions also required that the application book be served on the applicant within 15 business days of the directions.

20    On 30 July 2026, 20 business days before the listed hearing date, the Minister filed his submissions as required by the directions. The directions required the applicant to file his written submissions 10 business days before the hearing date (which was 13 August 2026). No submissions were, or have been, filed by the applicant.

21    On 27 August 2026, this application was heard before me, with the parties having been notified of the hearing date on 2 June 2026. The applicant appeared in person and was provided with, and utilised, the assistance of a Telugu interpreter.

Consideration

Is leave to appeal required and what are the considerations for leave?

22    The preliminary question is whether the applicant is indeed required to seek leave to appeal from the primary judgment.

23    I am satisfied that the orders of the primary judge from which appeal is sought were interlocutory orders. The primary judge dismissed the application for review of the decision of the Judicial Registrar on the basis that the application was incompetent, because the application was not made within the seven-day timeframe required by r 21.02(1) of the FCFCOA Rules: [6]–[7], [13]–[15], [39]. Although the primary judge’s decision was made in response to an application by the Minister that the application for review be summarily dismissed as having no reasonable prospect of success, under r 13.13(a) of the FCFCOA Rules, it appears that the basis for the decision was instead that the application was not competent due to non-compliance with r 21.02(1). Such a decision was found to be interlocutory in CIK23 v Minister for Immigration and Citizenship [2025] FCA 896 at [9], [13]–[15] (Bromwich J).

24    The decision of the Judicial Registrar was itself interlocutory, as it was a decision to summarily dismiss the application for judicial review of the Tribunal’s decision under r 13.13(a) of the FCFCOA Rules: see EBW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 341 at [31] (Feutrill J). Because the orders of the primary judge dismissed an application for review of an interlocutory decision, the orders of the primary judge were likewise interlocutory in nature, as Bromwich J explained in CIK23 at [12]–[16].

25    Accordingly, where the applicant seeks to appeal from an interlocutory judgment of the Federal Circuit and Family Court exercising original jurisdiction under a law of the Commonwealth, he requires leave of the Court: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). In determining whether to grant such leave to appeal, the Court should generally consider:

(a)    whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court exercising its appellate jurisdiction; and

(b)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

26    The Full Court determined that those were the relevant considerations in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at [2]–[3], [6] (Sheppard, Burchett and Heerey JJ), applying Niemann v Electronic Industries Ltd [1978] VR 431 at 433 (McInerney J), 437, 441 (Murphy J, McInerney and Gillard JJ agreeing, though Gillard J dissented as to the result). That decision has since been applied on many occasions, including to the consideration of applications for leave to appeal within the Court’s migration jurisdiction: see e.g.: Chaudhari v Minister for Immigration and Citizenship [2025] FCA 1055 at [30] (Downes J); Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 at [5] (Perram, Moshinsky and Hespe JJ).

27    The applicant bore the onus of making out both limbs of that test: SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [8] (Flick J). Further, as explained in Niemann at 437 and 441 and in Sharp v Deputy Federal Commissioner of Taxation (1988) 88 ATC 4184 at 4186 (Burchett J), the two conjunctive limbs bear upon each other and must be considered together.

Was the primary judge’s decision attended by sufficient doubt?

28    At the commencement of the hearing before me on 27 August 2026, I invited the applicant to make any submissions he wished to make in support of his application. I requested the applicant pay particular attention to, first, any reasons why or how the primary judgment was wrong, and second, if the decision was wrong, and leave to appeal were refused, how that would affect him.

29    The applicant then made brief oral submissions through the interpreter which addressed the procedural history and background to this proceeding which has been summarised above, including by explaining his attempts to contact the registry of the Federal Circuit and Family Court following the Judicial Registrar’s decision which he said explained his delay in filing his application for review of that decision. The applicant’s oral submissions did not, however, explain why or how the primary judge was said to have made an error in her Honour’s consideration of those circumstances, nor did his oral submissions identify any other part of her Honour’s reasons as erroneous.

30    The applicant concluded his oral summary of the factual circumstances of the Tribunal proceedings by stating that was all he wanted to say. I again invited the applicant to tell me if there were any parts of the primary judgment to which he wanted to direct my attention. No errors in the primary judgment were identified.

31    Besides what was said orally, the applicant’s written application for leave to appeal raises grounds A.1 to A.13 together with 32 paragraphs which are repeated in substantially identical terms in his amended draft notice of appeal. Those paragraphs are largely drafted by way of factual summary of the procedural history of the matter and are not all expressed as distinct grounds of appeal. The most significant discernible difference between the contents of the amended draft notice of appeal and the application for leave to appeal is the addition in the draft notice of further paragraphs 31 a. to t. Construing those documents as generously as possible and treating them as including the submissions of the applicant, I do not consider they identify any error in the primary judgment or raise sufficient, or any, doubt in its correctness to warrant reconsideration.

32    The Minister’s written submissions, on which he placed reliance at the hearing, contend that the applicant’s ‘grounds’ are without merit. For the following reasons, I agree with those submissions.

33    As to paras A.1 to A.13 of the amended draft notice of appeal and application for leave to appeal, these are all directed to the steps the applicant says he took after the hearing before the Judicial Registrar concluded on 17 May 2024. They concern the repeated contact he says he had with the Federal Circuit and Family Court registry from 23 to 30 May and 11 July 2024, where he alleges he received conflicting information about the applicable deadline and fees for an application to review the Judicial Registrar’s decision. He says that this contributed to him filing his application for review out of time and that his linguistic limitations and lack of understanding of the proper process meant he did not appreciate the repercussions of filing out of time.

34    These matters were addressed and considered by the primary judge at [18]–[19] of the primary judgment in the course of her Honour considering whether, had the applicant applied for an extension of time, such an application would have been granted. The primary judge concluded she would not have granted such an application were one made, having weighed the matters raised by the applicant against considerations including the public interest in the finality of administrative decisions and the merits of the substantive judicial review application, which her Honour found did “not identify any reasonably arguable jurisdictional error in the [Tribunal’s] decision”: [22], [28]–[33]. The applicant’s written materials did not identify any error in this reasoning of the primary judge. In any case, the reason why the primary judge dismissed the application before her Honour as incompetent was because it was not filed within the seven-day time limit required by r 21.02 of the FCFCOA Rules, and no application for an extension of time was made either in writing or orally: [13]–[15]. That was so notwithstanding that the applicant had been legally represented at the first hearing before the primary judge and was given an opportunity to make such an extension of time application, which he still did not do: [7]–[12], [14]. Nothing in the applicant’s written material before this Court identifies any error in this reasoning.

35    As to paras 1 to 6, 23 and 25 in the amended draft notice (and their equivalents in the application for leave), they merely set out the procedural history of the matter before the Department, Tribunal and Judicial Registrar or are statements of legal principle and make no assertions of error in the primary judgment.

36    As to paras 7 to 13, they raise the applicant’s allegations about the conduct of his former migration agent and his claim that he (the applicant) did not receive communications from the Tribunal, which the primary judge found had no prospect of success: [30]. In particular, the primary judge considered that the applicant’s own email address was given as the point of contact in the Tribunal application form, and that the applicant had used this same email address in the course of the proceedings before her Honour (as he did in this Court, as explained above) with no explanation of why the Tribunal’s communications with him personally were not received. The applicant did not identify any error in the primary judge’s consideration of these contentions.

37    As to paras 14 to 19, they concern the applicant’s complaint about an error contained in the attachment to the second letter sent by the Department on 10 November 2021 which again requested that he provide a Form 80. Since these issues relate to the decision of the delegate and not the decision of the Tribunal which was the subject of the original judicial review proceedings, they are irrelevant to the present proceedings.

38    As to paras 20 to 22, they raise the applicant’s contentions about why him not providing a Form 80 should not have resulted in a visa refusal decision. Those contentions go to the merits of those decisions, which are not able to be considered on an appeal in judicial review proceedings, and they identify no error in the primary judgment.

39    As to paras 24 and 26 to 30, they are unparticularised grounds directed to error by the Tribunal, but do not identify or explain any error in the primary judgment. Those paragraphs do not raise any doubt about the correctness of the primary judge’s consideration of the alleged errors of the Tribunal, which her Honour evaluated in the course of assessing a hypothetical extension of time application were one to be made: [23]–[33] of the primary judgment.

40    Paragraph 31 is a statement of the outcome the applicant seeks from his application, rather than a ground of appeal. Subparagraphs 31 a. to e. are expressed as grounds of appeal directed to errors by the “trial court”, however none of them are particularised with any specificity that would allow them to be understood. For example, subpara 31 b. alleges “failure on the part of the trial court to duly consider the relevant legal arguments and applicable laws” without identifying which legal arguments or applicable laws were not considered, or where in the primary judgment such an error may be identifiable. Subparagraphs f. to s. all either allege error on the part of the Tribunal, or contain statements of legal principle without a connection to the circumstances of the present case; in neither case is any error in the primary judgment identified or explained. Finally, subpara 31 t. again rehearses the factual claims about the applicant’s contact with the Federal Circuit and Family Court registry, dealt with above.

41    For those reasons, I am satisfied that the applicant has failed to establish that the primary judgment is attended by sufficient doubt to warrant reconsideration.

Would substantial injustice result if leave to appeal were refused, supposing the primary judgment to be wrong?

42    The applicant did not address the Court directly on whether substantial injustice would result if leave were refused, supposing the primary judgment to be wrong. On a generous construction of the applicant’s written materials, they refer to the financial cost of pursuing merits review and judicial review proceedings and the cost of living while those proceedings have been on foot, and in oral submissions the applicant referred to the “bad experiences” he had throughout this time. It can also be accepted that once all avenues for review of the visa refusal decision have been exhausted, that has implications for any potential future visa pathways by which the applicant could remain in Australia.

43    Even assuming that substantial injustice to the applicant would result if leave to appeal were refused, on its own this would not persuade me to grant leave to appeal. In light of my finding that there is no basis to warrant reconsideration of the primary judgment, and my view that there is no doubt, let alone sufficient doubt, as to the correctness of the primary judgment, I would not grant leave to appeal.

Application for adjournment

44    Following oral submissions made by the applicant and the Minister, I asked the applicant whether he wished to say anything further in support of his application and anything in reply to the Minister’s submissions. The applicant then made an oral application for an adjournment. The applicant said that he wanted an adjournment to speak to a lawyer to assist him with the preparation of further submissions. The Minister opposed the adjournment.

45    The principles governing such adjournment applications in the context of migration hearings were summarised by Jackson J in WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2]:

(1)    Lack of legal representation is not, of itself, a reason to adjourn the hearing of a long-scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19].

(2)    Other than in the case of persons appearing before a court for a serious criminal offence, there is no absolute ‘right’ to legal representation in this country, in the sense that a judge is required to adjourn the proceeding if the party has no lawyer: EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 at [18]; Jarrett v Westpac Banking Corporation [1999] FCA 425 at [6]; and Pallas v Minister for Home Affairs [2019] FCAFC 149 at [42(a)].

(3)    Nevertheless, the fact that a party wishes to obtain legal representation is a relevant factor in considering the question of whether an adjournment should be granted: BSY16 v Minister for Home Affairs [2019] FCA 140 at [5].

(4)    Matters that will be relevant in determining the weight to be given to that wish may include:

(a)    the amount of time the party has had to obtain legal representation;

(b)    the steps the party has taken to obtain such representation during that time;

(c)    the explanation for any delay in that respect;

(d)    the utility of any adjournment, including the likelihood of the appellant obtaining legal representation; and

(e)    the time required for the appellant to do so,

see BSY16 at [5]; and Pallas at [42].

(5)    In the end, the decision whether to adjourn is a discretionary decision for the court hearing the matter, which must be exercised judicially and will depend on the individual circumstances that are relevant: EPH17 at [18]-[19]; Jarrett at [78].

46    I was not satisfied that there was a proper basis for an adjournment and refused the adjournment application. I explained to the parties that I would give written reasons for refusing the adjournment application at the same time as I provided my reasons for the application for leave to appeal.

47    The application for leave to appeal was filed on 9 September 2024. My Chambers informed the parties on 2 June 2026 that the matter was listed for hearing on 27 August 2026. The applicant has therefore had a significant period of time to finalise his material for the hearing and substantial time to obtain a lawyer.

48    The applicant did not explain why he had not already had the opportunity to see a lawyer in advance of the hearing, nor how an adjournment at this stage would allow him to obtain a lawyer. The applicant had earlier explained in oral submissions that he had “approached three lawyers” in 2024 prior to filing his application for review of the Judicial Registrar’s decision. He did not explain what steps, if any, he took to obtain a lawyer in advance of this hearing. When asked why he has not already had this opportunity, the applicant stated “the lawyer said that it would cost me $5,000 to do that and at that time” he “could not afford it”. The applicant did not explain or provide any evidence about when this inquiry was made or how his financial circumstances would now enable him to engage a lawyer, nor why he waited until his reply submissions before me to request further time to seek the assistance of a lawyer. Further, the applicant did not explain how, if he obtained legal representation, that would enable him to make any submission he was not otherwise able to make at the hearing.

49    For those reasons, I refused the applicant’s adjournment application.

Disposition

50    For the reasons set out above, the application for leave to appeal is dismissed with costs.

Associate:

Dated:    1 September 2026