FEDERAL COURT OF AUSTRALIA

Nareddula v Minister for Immigration and Citizenship [2026] FCA 1485

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 Applicant’s application for an extension of time and leave to appeal be dismissed.

4.    If any party seeks a costs order, it may within seven days of the date of these orders file and serve an outline of submissions and any affidavit material upon which it seeks to rely. 

5.    If an application for costs is received in accordance with order 4, then any other party may, within a further seven days, file and serve a responding outline of submissions and any responding affidavit material upon which they seek to rely.

6.    Subject to further order, the issue of costs will be determined on the papers.

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

REASONS FOR JUDGMENT

BENNETT J:

INTRODUCTION

1    By an application filed on 16 April 2024, the Applicant seeks an extension of time and leave to appeal from the orders and judgment of her Honour Judge J Young (Primary Judge) delivered and published on 20 March 2024 in Nareddula v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 255 (PJ).

2    For the reasons explained in detail below, I have determined that it is not appropriate to extend the time for leave to appeal or grant leave to appeal.

BACKGROUND FACTS

3    On 9 August 2021, the Applicant applied for a Temporary Graduate (Class VC) (Subclass 485) visa (Visa). On 24 November 2021, the Department of Home Affairs wrote to the Applicant requesting that he provide information regarding the English language requirements for Temporary Graduate (Subclass 485) and Skilled – Recognised Graduate (Subclass 476) visas. The Applicant did not respond to that request.

4    On 23 March 2022, a delegate of the (then) Minister for Home Affairs (the Delegate) refused to grant the Applicant the Visa on the basis that he did not meet cl 485.212 of the Migration Regulations 1994 (Cth) (Regulations) because he had not provided evidence of having successfully completed an acceptable English test within the three years immediately before the day on which his Visa application was made. It was said, in consequence, that the Applicant did not satisfy cl 485.212(a)(i).

Tribunal decision

5    The Applicant applied to the (then) Administrative Appeals Tribunal (Tribunal) to review the Delegate’s decision and appointed a migration agent to assist him. On 12 January 2023, the Applicant was invited to attend a hearing before the Tribunal on 21 February 2023. The Applicant did not attend the hearing, and the Delegate’s decision was subsequently affirmed, with written reasons provided on 23 February 2023.

6    The Tribunal considered whether it was appropriate to continue with the Applicant not present. It analysed the issue in this way in its written reasons:

The applicant did not attend the hearing on 21 February 2023, and the Tribunal has received no further information from him to date. The Tribunal considered whether to defer making its decision, but given the confined nature of the criterion in dispute, it determined that it was appropriate to proceed to a decision without deferring for a further period.

7    In its written reasons, the Tribunal found that the application for review was received on 8 April 2022 and attached Pearson Test of English (PTE) test results from the Applicant indicating that he had obtained an overall score of 59, with scores of 54 for listening, 64 for reading, 66 for speaking and 54 for writing in a test that he undertook on 13 December 2021. The Tribunal considered that the issue was whether the Applicant had satisfied cl 485.212 of the Regulations, which required the application to be accompanied by evidence that the Applicant:

(1)    had undertaken a language test specified in an instrument and had achieved within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl 485.212(1)(a)); or

(2)    holds a passport of a type specified by the Minister in an instrument (cl 485.212(1)(b)).

8    The Tribunal found that the Applicant was required to have taken the PTE test within three years before the day on which his application was made. The Tribunal found that the test taken by the Applicant on 13 December 2021 did not meet the requirement of having been undertaken within three years before the day on which the application was made, being 9 August 2021. The Tribunal therefore concluded that the Delegate’s decision under review must be affirmed.

9    Shortly after, on 6 March 2023, the Applicant’s representative wrote to the Tribunal and sought to have the matter reconsidered. Submissions attached to the email from the representative said:

When we received the email from AAT for hearing on 12th Jan 2023, I am overseas, and it was in spam, and we missed that and that's the reason we didn't attend the hearing.

10    The Applicant’s submissions to the Tribunal argued that:

Due to the ongoing impact of COVID-19, the Department of Home Affairs has implemented flexible arrangements for additional information, including English tests, biometrics, and health requirements for visa applicants, including those applying for a 485 visa.

Due to covid 19, the Language centres was closed, and Minister for Department of Home Affairs has given concession period at the time of his application, consideration of time for submitting the score before the grant and examination must be booked on or before the application date. I will attach screen short for the publication.

11    Attached to those submissions were screenshots of news articles referring to COVID-19 related flexibility arrangements. By letter dated 6 March 2023, the Tribunal responded to the Applicant’s representative stating that the submissions had been forwarded to the Member and the request had been carefully considered. However, the Member had decided not to reopen the case.

Proceedings in the Federal Circuit and Family Court of Australia (Division 2)

12    By application filed in the Federal Circuit and Family Court of Australia (Division 2) on 24 March 2023, the Applicant sought judicial review of the Tribunal’s decision. The application advanced the following three grounds of review:

(1)    By ground one, the Applicant asserted that:

Natural Justice - The Administrative Appeals Tribunal has failed on their duty to act fairly and acted under imputed bias based on the decision made by the Department of Home Affairs. The events unfolded were beyond applicants control and the tribunal has not given any weight for repercussions occurred due to Covid-19. The applicant made the application to the Department of Home Affairs during COVID-19 pandemic event and had flexible criteria for producing English Language exams during the process.

(2)    By ground two, the Applicant asserted that:

Irrationality and unreasonableness – The whole assessment of application has procedural impropriety. The Tribunal did not consider fairness related to the current matter. The applicant could not attend any English Language exams due to Covid - 19 lockdowns in Melbourne. The applicant lodged a Subclass 485 Temporary Graduate Visa application on 09 August 2021 enclosing confirmation from Pearson PTE for 02 September 2021. Subsequently, the applicant received a cancellation his English exam appointment on 18 August 2022 due to Covid - 19 lockdowns in Melbourne. The Tribunal or the Department of Home Affairs did not consider any of the circumstances related to Covid - 19 impact which is beyond the applicant's control. The applicant missed the Tribunal hearing since his representative failed to inform on time.

(3)    The third ground was as follows:

Not taking relevant matters into consideration - The applicant submitted an English Language exam within the requested time from the Department of Home Affairs in 2021. The applicant couldn't book any English language exams before due to lockdowns in the city of Melbourne. The Department of Home Affairs refused the application without considering the submitted English Language exam and other circumstances led to possible delays. The applicant applied for a Tribunal review after receiving a refusal on his SC485 Visa under guidance of his representative. The Tribunal contacted the representative directly for a hearing date in 2023 and the representative failed to inform the applicant on time. The applicant could not attend the hearing and the Tribunal decided in favour of the Department of Home Affairs without providing any considerations for circumstances beyond applicant’s control.

13    On 24 November 2023, a Judicial Registrar dismissed the Applicant’s application for judicial review pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules) because it had no reasonable prospects of success. The Applicant sought review by a Judge which took place on 25 January 2024. On 20 March 2024, the Primary Judge dismissed the application on the basis that it had no reasonable prospects of success.

14    The Primary Judge considered each of the three grounds of review and concluded that none disclosed relevant error. In short, her Honour concluded:

(1)    In relation to ground one, that the Applicant did not have reasonable prospects of successfully establishing that the Tribunal erred by failing to bring those matters to account when considering whether the Applicant met cl 485.212. The reasons that the Applicant was unable to satisfy the requirements of cl 485.212(1)(a) were irrelevant to the assessment of whether he met the requirements in circumstances where cl 485.212 imposes mandatory, objective criteria for the grant of the Visa which the Tribunal had no power to waive (PJ at [48] and the cases cited therein). In addition, her Honour carefully considered each iteration of the relevant regulations that had been in place throughout the outbreak of COVID-19 and observed that none of the amendments assisted the Applicant.

(2)    In relation to ground two, that it was not irrational nor unreasonable for the Tribunal to conclude that the Applicant did not satisfy cl 485.212. In reaching that conclusion, her Honour reasoned that the Regulations permit no scope for consideration of personal circumstances (PJ at [57], citing (among other cases) Baig v Minister for Immigration and Border Protection [2019] FCA 204 at [12(5)] – [12(6)]] and [12(9)] (Bromwich J)).

(3)    In relation to ground three, her Honour considered the substance of the Applicant’s arguments concerning why and how he came to not appear at the Tribunal hearing. Her Honour referred to s 362B(1) – (1A) of the Migration Act 1958 (Cth) (Migration Act) and noted that the Tribunal’s power to proceed under s 362B(1A) is conditioned upon the relevant applicant having been validly invited to appear before the Tribunal under s 360 of the Migration Act (PJ at [66]-[67], citing Shah v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1536 (Beach J)). Her Honour concluded that the relevant hearing invitation requirements were complied with and found that the Tribunal’s exercise of the power was reasonable, and that the Applicant did not have reasonable prospects of establishing a contrary conclusion (PJ at [68]). To the extent it was argued that the Applicant’s non-appearance was due to his migration agent failing to inform him of the Tribunal hearing, her Honour found that the Applicant had no reasonable prospect of establishing fraudulent conduct by the migration agent that might vitiate the Tribunal’s decision. Her Honour concluded that taking the Applicant’s evidence at its highest, the conduct of the migration agent objected to was negligent, an oversight or a mistake. Such conduct did not establish fraud and was not capable of stultifying or vitiating the Tribunal’s process (PJ at [77], citing Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554 at [52] (Kenny, Griffiths and Mortimer JJ)).

THE CURRENT APPLICATION

15    The decision below was an interlocutory decision made under the FCFCOA Rules. Leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Pursuant to r 35.13 of the Federal Court Rules 2011 (Cth) (Rules), the application for leave to appeal must have been filed within 14 days after the date the Primary Judge’s orders were made. It is common ground that the application is out of time by 13 days. The Applicant asserts that he was told by Court staff that he had “28 days to file for leave to appeal” and that is the reason for the delay. The decision to grant an extension of time is discretionary (DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28] (Foster J)). The relevant principles were summarised by Hill J in AYJ22 v Minister for Immigration and Multicultural Affairs [2025] FCA 510 as follows (at [22], citing ALM22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 7 at [19] (Snaden, Abraham and Cheeseman JJ); Quach v RU [2024] FCAFC 32 at [24] – [25] (Perry, Meagher and Shariff JJ)):

(1)    An extension of time will be granted if the Court is satisfied that it is in the interests of justice to grant one.

(2)    In assessing the interests of justice, the Court considers factors such as the length of the delay, and the reasons for it; the degree of prejudice to the respondent if an extension were granted; and the merits of the substantive case on appeal, if an extension were granted.

(3)    It will often be appropriate to assess the merits of the proposed appeal at a reasonably impressionistic level, although there may be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment (for example, if the delay is lengthy and unexplained): see Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [17] – [18] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

16    A determination as to whether an applicant should be given an extension of time is one that is to be made “recognising the importance of finality in respect of judicial decisions and the important role that the observance of time limits has in maintaining the finality of judicial determinations” (BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 at [37] (Colvin J)).

17    Accepting the importance of time limits, I consider the core of the issue in this case to be the merits of the underlying application. That is because it would be a serious matter to shut a person out of a viable application for review where the period of delay was explained and relatively short.

18    The Applicant appeared at the hearing in this Court for himself with the assistance of an interpreter. He commenced by seeking an adjournment. I refused the application for the adjournment, giving short oral reasons for doing so. The listing of the hearing of this application had been postponed twice previously at the Applicant’s request, each time citing the availability of his lawyer. In addition, I heard an application for an adjournment of this matter on 3 September 2026. There was no attendance at that hearing by the Applicant or the Applicant’s (then) legal representative. The Applicant said that he was not told about the hearing of the adjournment application and that is why he did not attend. The Applicant said that he required the adjournment to obtain alternative legal representation but was ready to proceed if no adjournment were granted.

19    Considering the history of this matter and the significant indulgences granted to the Applicant to date essentially for his convenience, I did not consider that it was in the interests of justice to permit the adjournment application. I was fortified in this conclusion by the fact that the Applicant had filed coherent written submissions and said that he had read and understood the Minister’s submissions.

Length of delay and adequacy of the explanation

20    The Minister submits that a delay of 13 days is not insignificant, when considered in the context of the 14-day time limit prescribed by r 35.13 of the Rules and that the Court should not depart from time limits too readily. I generally accept that time limits are important. However, the delay is not substantial and has been (at least in part) explained – although I note that there is a lack of detail in the explanation, it was not submitted that I should not accept it as honest. It is submitted that it is the Applicant’s responsibility to ascertain the applicable time limits.

21    I do not consider the length of the delay to be significant in the circumstances of the case and in light of the explanation provided.

Prejudice to the Respondents

22    The Minister submitted that no specific prejudice would be caused to them if the application were granted, beyond the public interest in the timely finalisation of administrative decisions. I accept that a lack of prejudice alone is not a reason to grant an extension of time (Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 349 (Wilcox J)).

The merits of the proposed appeal of the primary judgment

23    The most important issue in this application is the merits of the proposed appeal. I turn now to consider this issue. The Applicant proposes to raise three grounds of appeal alleging error by the Primary Judge. Each is set out in full, below.

The first proposed ground of appeal

24    The first proposed ground of appeal is as follows:

2.1    The Federal Circuit Court and Family Court of Australia ("FCFCOA") committed jurisdictional error by incorrectly interpreting or applying the law and reaching a decision that is unreasonable in the legal sense, in finding that my substantive application had no reasonable prospect of success. Contrary to this finding, my substantive application had a reasonable prospect of success.

2.2    The FCFCOA erroneously relied on Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 307 at [26] and [30] ("Kumar"), interpreting the absence of any discretion to grant the visa. The FCFCOA failed to consider my circumstances preventing me from satisfying the requirements of cl 485.212(1)(a) of the Regulations, specifically the cancellations and rescheduling issues related to the English language test due to COVID-19 restrictions.

2.3    The FCFCOA also overlooked the Australian Government Notification, which implemented changes to support international students during the COVID-19 pandemic, acknowledging their significant contributions to the economy and the challenges posed by the pandemic. These included provisions for granting student visas, waiving fees for further applications, and allowing online studies to count towards certain visa requirements, which directly impacted my case.

2.4    Despite these provisions, the FCFCOA ignored the fact that in August 2021, my authorized agent applied for a 485 visa on my behalf without including English test scores due to lockdown restrictions preventing me from taking the test.

2.5    I contend that the FCFCOA should have adopted the approach taken in Leung (Migration) [2017] AATA 2262, where the Tribunal accepted post-lodgment English test results under similar circumstances.

25    At the core of this ground is the contention that cl 485.212 involved some discretion that should have been exercised, and exercised in the Applicant’s favour. The Applicant asserts that there were COVID-19 related reasons for his failure to carry out the test in the manner required and that should be taken into account. He has also submitted that there were exemptions provided because of COVID-19 and that provision was made for non-compliance with the strict requirements of the Regulations during the COVID-19 outbreak. He referred to media reporting of COVID-19 related flexibility of the English language requirements. He said in the course of the hearing, that his migration agent had told him that there was flexibility due to COVID-19 and assured him that he could file his Visa application without having completed an English language test at that time.

26    Clause 485.212 (the Relevant Regulation) applied to the Applicant at the relevant time. It stated:

485.21—Common criteria

Note:     These criteria are for all applicants seeking to satisfy the primary criteria for the grant of a Subclass 485 visa.

…

485.212

(1)    The application was accompanied by evidence that:

(a)    the applicant:

(i)    has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

(ii)    has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

(b)    the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.

(2)    Subclause (1) does not apply to an applicant:

(a)    whose application is an application to which subparagraph 1229(2)(a)(ia) of Schedule 1 applied; or

(b)    who meets the requirements of clause 485.232, 485.233, 485.234 or 485.235; or

(c)    who nominated the Replacement stream in the application.

Note:     An applicant who meets the requirements of clause 485.236 or 485.237 is covered by paragraph (a).

27    It was not suggested that any of the criteria in cl 485.212(2) applied to the Applicant. In any event, I have considered those provisions:

(1)    Clause 485.212(2)(a): Subparagraph 1229(2)(a)(ia) in turn refers to cl 1229(2A). It does not apply to the Applicant.

(2)    Clause 485.212(2)(b): Various requirements are set out in the clauses referred to in cl 485.212(2)(b). These concern the Post-Study Work stream requirements and do not apply to the Applicant; and

(3)    Clause 485.212(2)(c): There is no suggestion that the Replacement stream was nominated in the application.

28    Thus, cl 485.212(1) applied to the Applicant. There are only two pathways for complying with that provision, the Applicant must either have undertaken a language test that complies with the requirements in cl 485.212(1)(a)(i) and (ii) or hold a passport of a type specified by the Minister in a legislative instrument made for cl 485.212(1)(b). The relevant legislative instrument prescribed at the time, IMMI15/062 (the Instrument) specified that cl 485.212(1)(b) applied to valid passports issued by one of the following countries:

(a)    the United Kingdom;

(b)    the United States of America;

(c)    Canada;

(d)    New Zealand; or

(e)    the Republic of Ireland.

29    The evidence before me makes clear that the Applicant held a passport issued by India. Accordingly, cl 485.212(1)(b) does not apply to the Applicant.

30    The Instrument relevantly provided further as follows (emphasis added):

(1)    For sub-paragraph 485.212(1)(a)(i) the PTE test is a specified language test;

(2)    For sub-paragraph 485.212(1)(a)(ii) the PTE test must be completed in a single sitting and the applicant must achieve a minimum overall score of 50, with a minimum score of 36 for each category (being listening, reading, speaking and writing); and

(3)    For sub-paragraph 485.212(1)(a)(ii) the PTE test must have been undertaken within three years before the day on which the Visa application was made.

31    In short, the Applicant’s application was made on 9 August 2021, while the test results upon which the Applicant relies are dated 13 December 2021. It follows that the PTE test was not undertaken within the three years before the day on which the Visa application was made.

32    The Applicant argues that he should have the opportunity to fully ventilate his claim that the Relevant Regulation and the Instrument permit reliance upon the later test, having regard to all the circumstances, including COVID-19 and the difficulties for testing caused by it. However, the provisions that are at issue are clear. The Relevant Regulation requires that the Applicant achieves the required English language test score “within the period specified” by the Minister in the Instrument. The Minister specified a period within the Instrument, and it is defined by reference to the date of the visa application. That is, the relevant scores must be achieved on a specified English language test completed within three years prior to the day of the application being made. As noted by Mortimer J (as her Honour then was) in Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 (at [41]), in a slightly different context: “These historical facts either exist at the time of application, or they do not”. In this case, the historical fact in question is whether the Applicant had completed the relevant English language test in the three years prior to the visa application being made. He had not.

33    There is no scope for the exercise of discretion disclosed on the face of the Relevant Regulation, nor is there any ambiguity in the imposition of the applicable time period. The position was considered by Bromwich J in Baig. In that case the first appellant had to satisfy the English language test criteria. A delegate of the (then) Minister for Home Affairs refused the grant of the appellants’ visas and the Tribunal affirmed that decision as he was unable to satisfy those criteria. His Honour described the criteria as “indispensable” (at [3]). In that case, the first appellant had not achieved the required scores for the tests that he sat within the specified period. He then sat a further test and did obtain the required score – but because he had done so after he had applied for the visa it “could not be taken into account” (at [3]). The appellants in that case argued that there were compelling reasons to waive or override the English language test requirements that the Tribunal should have considered. His Honour recorded (at [12(5)]):

As the primary judge correctly found (at [18]), there was no provision for the consideration of “compelling reasons” or the exercise of discretion by the Tribunal.  Accordingly, the Tribunal was correct to find that these matters were not relevant for the purposes of applying the statutory test: see the Tribunal’s reasons at [15]-[16], [19].  Those submissions are undoubtedly correct, and ground 5 must fail.

(Emphasis in original.)

34    Similarly, in relation to the contention that the Tribunal had “strong evidence” in support of the first appellant’s case but failed to take into account “strongly compassionate circumstances” and failed to recommend his case to the Minister for Home Affairs, his Honour stated (at [12(6)]):

However, as noted above, there was no scope for the Tribunal to consider any compassionate or compelling circumstances given the strict and mandatory visa criterion that the first appellant was unable to meet. If the first appellant seeks to contend that the Tribunal ought to have exercised its discretion to refer the matter to the Minister so that the Minister may substitute the Tribunal decision with a decision more favourable to the appellant in the public interest, under s 351 of the Migration Act, the Tribunal is under no statutory obligation to consider referring a matter to the Minister: see Gade v Minister for Immigration and Border Protection [2016] FCA 1006 at [32]. Moreover, there is no indication that the first appellant requested that the matter be referred. Those submissions must be accepted and ground 6 must therefore fail.

35    His Honour’s approach has been followed a number of times in the Federal Circuit Court. Moreover it is consistent with the analysis of Mortimer J (as her Honour then was) in Kaur, referred to above.

36    I can see no basis in the text, context or purpose of the relevant provisions for the suggestion that a discretion of any kind arises. There is therefore no scope to go behind the circumstances in which the criteria were not met because it is clear and undoubted that they were not.

37    The Applicant relied upon the case of Leung (Migration) [2017] AATA 2262. That was an application for review of a decision made by a delegate of the (then) Minister for Immigration to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act. The delegate refused the visa on 25 May 2017 because the applicant did not have the required English language proficiency. The applicant applied for the visa on 11 March 2017. The applicant provided the Tribunal with a certified copy of her test results, which indicated that the English language test was taken on 10 June 2017 and the applicant achieved the required scores. Accordingly, the Tribunal concluded that the applicant met the requirements of cl 485.212. The Applicant appears to proceed on the basis that in that case, a different approach was applied. The requirement was that the applicant had undertaken a language test specified in an instrument and had achieved the required scores within the period specified. The instrument then in force was IMMI15/062 (i.e. the Instrument). The Instrument specified a period of three years prior to the date of the visa application for the Occupational English Test (which the applicant in that case had undertaken).

38    The decision in Leung makes no reference to the timing of the test that was taken. It is not clear that the issue was identified by the Tribunal. The Tribunal focused upon whether the applicant obtained the requisite scores. The matter was therefore remitted to the Minister for Immigration for further consideration. There is no record available of what happened after that time and whether a visa was granted. Leung does not represent a different approach to the construction of cl 485.212. At best, it represents an example of the issue of timing not having been raised or considered fully by the Tribunal. In any event, it does not disclose a pathway of reasoning, and it cannot stand in light of the authoritative statements of Bromwich J in Baig. Accordingly, reliance upon Leung is misconceived.

39    While it was not argued by any party, given the Applicant’s unrepresented status, I also considered whether a construction of the kind that arose in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 84 ALJR 251 (French CJ, Gummow and Crennan JJ) might arise in this case. If it did, then I would have called for further submissions about it. However the wording in the present proceeding is quite different from that considered in Berenguel.

40    The Instrument in the present case provides that the test “must have been undertaken within the three years before the day on which the application was made” (emphasis added). That formulation identifies the specific window within which the test must be undertaken, and is not susceptible to the potential ambiguity of the kind to which the High Court in Berenguel referred.

41    The Applicant argues that:

First, he [the Applicant] had booked a qualifying English-language examination before lodging the visa application, but that appointment was cancelled because of public-health restrictions. Secondly, the Department requested further English-language evidence on 24 November 2021, after the application had been lodged, and the Applicant undertook and passed the examination shortly thereafter. Thirdly, the Government had publicly announced that additional time would be provided where COVID-19 restrictions disrupted access to English-language testing services.

42    For the reasons that I have explained, circumstances of this kind do not assist the Applicant in light of the statutory framework. All of these matters were correctly apprehended by her Honour, and her analysis of those matters discloses no error. There is no further ventilation of the matter available that might make summary determination inappropriate.

The second proposed ground of appeal

43    The second proposed ground of appeal is as follows:

2.6    The FCFCOA committed jurisdictional error by not remitting the matter back to the Tribunal to allow me a fair hearing. My agent failed to inform me about the hearing before the Tribunal, which led to my non-appearance and consequently an adverse decision.

2.7    This failure mirrors the circumstances discussed in SZDFE v Minister for Immigration and Citizenship (2007) HCA 35, where the High Court highlighted the importance of an applicant's presence at hearings to ensure procedural fairness. The agent's negligence here similarly deprived me of the opportunity for a fair review process.

44    The Applicant referred to SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ). In that case, the High Court said (at [51]):

No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act.  In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the Tribunal.

45    The Applicant accepted that SZFDE did not permit reliance upon a single instance of negligence or a communication failure. So much was made clear in SZFDE itself (at [53]):

The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.

(Footnotes omitted.)

46    The Applicant nonetheless submitted that the question should not be summarily determined. It was said that it should instead be considered in a full hearing and not at the stage of summary dismissal.

47    The Applicant accepted that the circumstances upon which he relied to establish the failures of his former migration agent were set out in his affidavit. His evidence was taken at its highest by the Primary Judge. Her Honour considered the migration agent’s failure to advise the Applicant of the date of the hearing before the Tribunal (at PJ [59] – [62] and [77]). The Primary Judge found that the Applicant was invited to the hearing in accordance with ss 360 and 360A of the Migration Act. In particular, her Honour found (at PJ [60]) that the invitation:

(1)    complied with s 360A of the Migration Act as it gave the Applicant notice of the day on which and the time and place at which he was scheduled to appear;

(2)    provided a notice period that was greater than the prescribed 14 days;

(3)    contained a statement to the effect of s 362B of the Migration Act, i.e. that if the Applicant did not appear before the Tribunal on the day on which, or at the time and place at which the Applicant was scheduled to appear, then the Tribunal could proceed to make a decision on the review or dismiss the application.

48    There is no dispute that the invitation was sent via email to the Applicant’s former migration agent who the Applicant had authorised to receive correspondence from the Tribunal (in compliance with s 379G(1)(b) and (2) of the Migration Act). The Applicant’s authorised recipient’s email address, was also “the last…email address…provided to the Tribunal…by the recipient in connection with the review” for the purposes of ss 360A(2)(a) and 379A(5)(b) of the Migration Act.

49    There is no obligation falling upon the Tribunal to make any inquiry as to the failure on the part of the Applicant to appear (NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045; 152 FCR 592 at [21] (Greenwood J); Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73; 150 FCR 439 at [38]-[39] (Spender, French and Cowdroy JJ)).

50    Thus the evidence rises no higher than the possibility that the Applicant has received poor or negligent services. Taking the facts at their highest (as disclosed by the Applicant’s own affidavits), the evidence before this Court (and the Court below) indicates that the conduct of the Applicant’s former migration agent falls short of the kind of fraud capable of stultifying the Tribunal’s processes.

51    Moreover, for the reasons explained in relation to ground one above, the lack of discretion in the relevant provisions means that the Applicant had no means to overcome the fact that he did not meet the relevant criteria even had he appeared at the hearing before the Tribunal.

52    It follows that the second proposed ground does not identify an erroneous approach in the decision below.

The third proposed ground of appeal

53    The third proposed ground of appeal is:

2.8    The FCFCOA failed to consider claims of procedural unfairness when my migration agent did not inform me of the hearing scheduled by the Tribunal. This oversight is contrary to the principles laid down in SZDFE v Minister for Immigration and Citizenship (2007) HCA 35, emphasizing the importance of procedural fairness and the applicant's right to be heard.

54    The proposed third ground largely overlaps with the second ground, and for the same reasons it does not cast sufficient doubt upon the PJ to warrant its reconsideration.

Other submissions

55    In considering this application, I have had regard to my obligations to self-represented litigants (SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing); NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (Farrell, Wigney and Perry JJ)). The relevant principles were conveniently summarised by Moshinsky J in Wahed v Minister for Home Affairs [2019] FCA 247 at [26] as follows:

Courts have an overriding duty to ensure that a trial is fair to all parties. In the context of an unrepresented litigant, that duty requires the Court to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case…However, there is no statutory right to legal representation. Nor is there any absolute right to legal representation at common law…In civil proceedings, procedural fairness does not require that a party be provided with legal representation, no matter how serious the consequences of the proceedings might be…

(Citations omitted.)

56    The obligation to ensure a trial is fair does not require a judge to give legal or tactical advice to a self-represented litigant that would compromise the judge’s impartiality and be unfair to the opposing party (Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; 270 FCR 335 at [106] (Murphy and Rangiah JJ)).

57    In the course of the hearing before me, the Applicant contended that he had been told by his former migration agent that he could apply for the Visa at the relevant time, and that submitting his test results after lodging the application would be acceptable due to the operation of COVID-19 “lockdown exemptions”. He said he lost a lot of time due to COVID-19 and poor advice. Considering the issues as I have identified them, and having regard to the obligations owed to self-represented litigants, I am unable to identify any further arguments arising from these submissions which go beyond those that I have ventilated in the course of this analysis.

58    The Applicant also referred to some evidence of media reporting that he had relied upon in forming the view that there was to be flexibility in the English language requirements during the COVID-19 outbreak, however no such flexibility is disclosed in any of the legislative instruments or regulations that applied to the Applicant at the relevant time.

Extension of time – conclusion

59    It follows that the merits of the proposed appeal are lacking. Accordingly, even though there might be an adequate explanation for the relatively short delay, the interests of justice do not support the extension of time.

Leave to appeal

60    If time were extended, it would be necessary to consider whether to grant leave to appeal. For the Court to grant leave to appeal, the applicant must satisfy the cumulative criteria set out in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 (at 398-399), namely that:

(1)    in all the circumstances the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered; and

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

61    The same analysis which causes me to conclude that it is not appropriate to extend the time period would likewise causes me to conclude that leave to appeal should not be granted. Even though substantial injustice would result if leave were refused and the decision were wrong, the decision of the Primary Judge is not attended with sufficient doubt to warrant it being reconsidered.

62    Ultimately, I accept the Minister’s contention that any remittal to the Tribunal would be futile. The Applicant did not meet the requirements of the Relevant Regulation at the time of submitting his Visa application, and so could not at the time of the Tribunal’s decision, and still could not if the matter were remitted to the Tribunal.

CONCLUSION

63    The Primary Judge’s decision to dismiss the application for judicial review is not attended by sufficient doubt to warrant its reconsideration. While an explanation for delay has been provided, I do not consider that the fact that an explanation exists outweighs the difficulties identified with the substance of the Applicant’s proposed grounds of appeal.

64    It follows that I do not consider it is appropriate to grant the extension of time or leave to appeal sought by the Applicant. The Applicant’s application will be dismissed.

65    The Minister sought costs fixed in an amount of $5,000. It provided no submission or explanation for that amount. While it does not appear excessive it is not appropriate to include an amount without any apparent justification or explanation. I will therefore permit the parties to make any costs application consequent upon these reasons within a short period of time.

Associate:

Dated:    8 October 2026