Federal Court of Australia

Pokharel v Minister for Immigration and Citizenship [2026] FCA 1498

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicants pay the costs of the first respondent to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The first applicant is a citizen of Nepal who arrived in Australia in 2017 as the holder of a Student (Temporary) (Class TU) (Subclass 500) visa. The second applicant is his wife. Since his arrival in Australia, the first applicant has completed two master’s degrees in accounting.

2    On 2 March 2021, the first applicant applied for a second student visa. The second applicant applied as a dependent on his visa. On 15 December 2022, a delegate of the Department of Home Affairs (Department) granted the applicants the student visas. On the same day, the Department notified the applicants of the decision by way of email to their migration agent. On 1 March 2023, the student visas ceased.

3    On 17 November 2023, the applicants filed an application under s 477(2) of the Migration Act 1958 (Cth) (Migration Act) seeking judicial review of the delegate’s decision to grant them the student visas. It was filed 302 days after the expiry of the requisite 35-day filing period for such an application. On 21 November 2023, the applicants sought an extension of time. Before the primary judge, the applicants argued they did not know the visas were granted, and that they had expired by the time they became aware of this. The applicants contended that if the primary judge were to find jurisdictional error and remit the matter to the Department for reconsideration, their applications for student visas would revert to a ‘pending’ status and enable them to provide the documents necessary to meet the criteria for their visas. The primary judge dismissed the application for an extension of time: Pokharel v Minister for Immigration and Citizenship [2026] FedCFamC2G 121.

4    The applicants seek review of that decision. Their grounds of review, as set out in their amended originating application filed 31 August 2026, are as follows:

The decision of the Federal Circuit and Family Court (the Court) to refuse the applicant’s application for an extension of time under s 477(2) of the Migration Act 1958 (the Act) was affected by jurisdictional error in that:

1.    The Primary Judge failed to pay careful attention to the overall submissions of the Appellant’s legal representative and the Appellant’s evidence.

2.    The Primary Judge concluded “that there is a strong substantive case which weighs significantly towards the grant of the extension of time for lodgement of the extension of time” despite which Her Honour failed to grant extension of time. In doing so, Her Honour failed to apply the correct test or requirement as stated in the authority and determine that the matter should proceed final hearing and decision therein.

5    For the reasons below, the application is dismissed with costs.

Consideration

6    Before addressing the merits of the grounds of review, it is appropriate to put them in context.

7    As explained above, the applicants’ required an extension of time of 302 days. The primary judge concluded there was a strong substantive case that weighed significantly towards the grant of an extension of time: J[86], and see the explanation for this conclusion at J[72]-[85]. This was because the first applicant was required to be enrolled in a course of study at the time when the visa was granted: cl 500.211(1) of Schedule 2 to the Migration Regulations 1994 (Cth). The first applicant was not enrolled in a course at that time, with the end date for his most recent course being 15 May 2022, and his enrolment had been cancelled on 11 March 2022: J[81]. Her Honour determined this was a clear error amounting to an error of law: J[85]. Her Honour also concluded there were factors weighing against the grant of an extension, being the delay in seeking review and the lack of reasonable explanation for that delay: see J[46] – [62], and J[87]. The primary judge addressed s 477(2) of the Migration Act, which provides the Court may extend the 35-day period if satisfied that it is necessary in the administration of justice, and the relevant principles in respect to the grant of an extension: J[88]-[90], and see J[41]-[43]. Her Honour provided detailed consideration of the relevant factors taken into account in determining whether that test is satisfied in this case: J[91]-[112]. The reasoning included the following at J[96]:

[96]    As in MZZGC and SZVBN, in the case before me, the merits of this case are strong, or in the words of Katoa, ‘exceptional’, for reasons set out earlier. There is no doubt that there was a jurisdictional error in the decision of the delegate. However, there is a notable distinction in the circumstances in MZZGC and SZVBN. In those cases, the applicant had applied for a protection visa, and the injustice which would result in refusal to grant the extension was possible refoulment. In the case before me the consequences of not granting leave are arguably not as serious as in those cases, as the outcome would be an inability to study and possibly need to return to India. An applicant who is not granted an extension of time may also face stress, exposure to detention and removal. Significantly, the injustice does not emanate from the unlawful decision itself, but rather from the actions of the applicants. If they had kept in contact with the Department, they would have availed themselves of the benefit of the visas.

8    And at J[106]-[107]:

[106]    Permitting applicants to lodge applications out of time in circumstances where they have failed to take reasonable steps to communicate with the Department or to remain informed about their visa status, undermines the purpose of the statutory time limits. These timeframes are designed to ensure smooth progress of litigation in the context of procedural fairness being afforded to applicants (notifications about deadlines and processes of judicial review). Timeframes are essential to ensure that administrative decisions are final and operative and that courts operate efficiently. Timeframes are particularly important in migration cases where the Department, Tribunal and courts are grappling with enormous backlogs.

[107]    In the case before me it was incumbent on the applicants to notify the Department of changes to their contact details and to ensure that the agent was able to contact them. The first applicant claimed that he lost his mobile telephone and lost access to his emails. However, he did not keep in contact with his agent or the Department and did not provide new contact details to these parties. For these reasons, the applicants did not know of the visas granted to them, although it is not clear why the agent did not take other steps to contact them. This then led to the applicants applying for judicial review after the statutory deadline for such applications. It was the applicants’ own conduct which led to this outcome.

9    See also J[109]:

[109]    In the case before me there was a visa grant by the Department. Although the visa grant may have been unlawful, it was not the visa grant that caused the injustice, it was the actions of the applicants.

10    The primary judge concluded at J[110] – [112]:

[110] … So that the migration system can work effectively, it is not in the public interest for applicants to challenge delegate’s decisions because the applicants have not been diligent in taking reasonable steps to find out if their visas have been granted. What sets this case aside is that the primary decision was beneficial to the applicants. Any resulting adversity flowed from the applicants’ conduct.

[111]    In short, the public interest in finality weighs against the applicants in this case, as they were granted the visas, rather than having them refused. The decision they seek to impugn was beneficial to them.

[112]    Although I acknowledge that it is central to the function of this Court to carry out its curial function of locating jurisdictional error in the decisions of primary decision-makers, and there is exceptional merit in the substantive case before me, when considering the delay, the lack of reasonable explanation for the delay, the public interest and the nature of the case, I am not satisfied that the extension of time is needed in the interests of the administration of justice.

11    There are three further preliminary matters to address.

12    First, the applicants on the review sought to read an affidavit of the second applicant. The affidavit is brief, and in large part details the second applicant’s view of the proceeding in the court below and that she “wish[ed] to assist this Court to understand things better and am providing clearer details”. The Minister objected on the basis that the applicants were represented by the same solicitor below, and also by counsel, and the material in the affidavit was not relied on by the applicants before the primary judge. The Minister submitted the inference is that counsel for the applicants made a forensic choice not to do so. I accept that evidence in relation to matters which could have been, but was not adduced before the primary judge ought not be admitted. Further, as the Minister submitted, the affidavit is not relevant to the issue at hand. Given the nature of the task in a judicial review, and the issues on this application, the affidavit is not relevant. I do not admit the affidavit.

13    Second, it is timely to recall, in light of the attempt to rely on the affidavit and the applicants’ submissions, which are addressed in detail below, that this application is not an opportunity for the applicants to simply reargue their case. Rather, the applicants must establish jurisdictional error in the decision of the primary judge. As the Minister submitted, what is required to establish this is clear from the authorities, for example, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (Craig) at 177-178 and Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [71]-[73].

14    Third, the application for an extension of time is governed by s 447 of the Migration Act. The High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 (Katoa) at [12] (in relation to the provision in the same terms) relevantly explained:

On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court’s satisfaction that an order extending time “is necessary in the interests of the administration of justice”. Other than the “interests of the administration of justice”, there are no mandatory relevant considerations, whether express or to be implied from the “subject-matter, scope and purpose” of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

(citations omitted)

15    Against that background I turn to the grounds of review.

Ground 1

16    In written submissions, the applicants contended on the first ground, that “the Minister mistakenly submitted wrongful statement and factual circumstances to her Honour, and the Primary Judge mistakenly accepted the factual circumstances as correct and true where in fact that was not what the fact of the matter or evidence given or suggested during the hearing let alone the Appellants’ Counsel’s submissions”. The applicants submitted the judgment is therefore missing aspects of the applicants’ actual circumstances as visa applicants.

17    As the Minister submitted, the applicants’ submissions do not address the ground of review as drafted, which does not contend the primary judgment contains factual errors. Nor did the applicants address in written or oral submissions how, if such factual errors were established, they could be other than within the jurisdiction of the primary judge: see e.g. Katoa at [45]; Craig at [186]. There is no claim in the grounds that the conclusions reached by the primary judge were unreasonable, or illogical. The ground rather attempts to reargue certain factual issues and the conclusion that the primary judge reached in respect of them. The Minister submitted that in any event, the applicants have not established any factual errors. For the reasons that follow, I agree with that submission.

18    The written submissions were unclear as to which paragraphs of the primary judgment were the subject of this ground. In large part, the applicants’ submissions were directed to reconsidering the merits of their application for an extension. Some of those submissions related to matters not before the primary judge. During the hearing, when asked by the Court to identify the purported factual errors, the applicants specified the following.

19    The first purported error is at J[55]:

[55]    I am not satisfied that the evidence establishes that the first applicant has been untruthful. Although he stated in Department documents that he would return to Nepal at the completion of course, when in fact he has remained in Australia, it may have been that circumstances changed, as claimed by him.

20    At the hearing, the applicants submitted the primary judge drew an incorrect conclusion in this paragraph, being that the first applicant had completed his study course, and had not returned back to Nepal. However, the applicants misinterpret the meaning of the paragraph. It must be read in its context. It is preceded by a summary of the first applicant’s evidence including that he was cross examined by counsel for the Minister, who “put to him that neither he nor his wife were planning to return to Nepal, as suggested in his letter to the delegate”: J[49]. The primary judge then summarised the other evidence of the first applicant: J[49]-[53], and relevant parts of the submissions made by the Minister: J[54]. The impugned paragraph reflects the primary judge rejecting a submission of the Minister that the first applicant had been untruthful in stating to the delegate that he wished to return to Nepal on the completion of his course. There is no error established in respect to this paragraph.

21    It was also said by the applicants there were a number of errors in J[56]-[61], although the basis of that submission is somewhat unclear. These are the primary judge’s reasons which assessed the explanation for the delay, omitting only J[62]. Despite the general assertion of error, the applicants only made submissions directed to some of those paragraphs. It is appropriate to recite the paragraphs in full:

[56]    However, I do accept, as contended by Mr Reilly, that the applicants were the authors of their own misfortune. The Department complied with the notification requirements in the legislation. The delegate’s decision was sent to the address of the authorised recipient (CB 83) nominated by the applicants (CB 7; 50) in compliance with s 494D(1) of the Act. It is important to note that this address was selected by the applicants as the address for notifications by the Department. As pointed out by Counsel for the Minister, the first applicant had evidently received communications from the authorised recipient in the past (CB 50).

[57]    The explanation for the delay provided by the applicants, that the first applicant had lost his mobile telephone in June 2022 and lost access to emails for about a year and for this reason did not know about the visa grant, is unsatisfactory for two reasons.

[58]    Firstly, if the first applicant was aware that he had lost access to communications, it is unclear why he did not contact the Department or the agent to notify them of the situation so that he could be contacted in a different manner. There is an obligation on applicants to notify the Department of change of circumstances (s 104 of the Act).

[59]    Furthermore, the Department advised the applicants that they should be notified of changes in contact details. In the letter from the Department acknowledging the visa application dated 2 March 2021, the Department states:

You need to tell us about any changes to your details as soon as possibles. These changes may affect any answer to a question in your application form including your name, passport, contact details, address and family members… You must do this in writing and can use Form 1022…” (CB 49).

[61]    Ignorance of time limits is generally not a satisfactory explanation for a failure to comply with them: see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 per Foster J at [38]. Similarly, in my view, ignorance about the notification of the grant of a visa, was not a satisfactory explanation in circumstances where the ignorance came about because of the applicants’ own conduct.

[62]    The extent of the delay and the lack of reasonable explanation for it weighs against exercising the discretion to grant an extension of time in which to lodge the application for judicial review.

22    In respect to J[57], the applicants submitted that description is incomplete. At the hearing, the applicants’ legal representative pointed to the omission in that paragraph of a detail from an affidavit of the first applicant dated 8 November 2023, that he had been unable to use the two step authentication system to access his email. I do not accept that J[57] is incomplete, as the paragraph must be read in the context of the preceding paragraphs, which included a summary and assessment of the evidence in relation to the applicants’ explanation for the delay in seeking review at J[47]-[53] (which is not the subject of any challenge).

23    Further, as the primary judge correctly concluded, the first applicant was under a legal obligation to tell the Department if his circumstances had changed: s 104 of the Migration Act. He did not do so. In so far as the applicants submitted orally that s 104 was not relevant as the Department would have sent the email to the first applicant’s legal representative as opposed to him directly, that submission cannot be accepted. There was an obligation on the first applicant to notify the Department of a change of circumstances, including contact details, as evident from J[59] recited above. I note the primary judge also concluded that the first applicant did not keep in contact with his migration agent, and did not provide the new contact details to them: J[107].

24    Further, the applicants submitted that when the first applicant’s Confirmation of Enrolment (COE) was cancelled, the first applicant was unaware of it, and so could not be expected to be able to inform the Department. It is not clear to which paragraphs of the primary judgment this submission was directed. The applicants’ written submission addressed J[54], which is simply a summary of the Minister’s submission in respect to the COE. In any event, as the primary judge concluded, there was an obligation on the first applicant to inform the Department of the cancellation by virtue of s 104. I note also the scheduled end date for the course was May 2022, six months before the visa was granted: J[80]-[81].

25    The applicants also pointed to J[61] as giving rise to an error. They submitted that the first applicant was not ignorant of the grant of a visa, but rather was “unaware”. In the context of the judgment, there is no distinction between those terms, which are synonymous in meaning. The applicants also made a similar submission as in respect of J[53], that J[61] does not present a complete picture of the circumstances in which the applicants were unaware of the grant of the visa. Again, this submission does not appreciate that the paragraph must be read in the context of the paragraphs that preceded it.

26    Finally, at the hearing the applicants submitted that as there was an explanation provided for the delay, the Court could not assess it as unsatisfactory. Rather, the relevant factor to consider on an application for an extension of time was whether there was in fact an explanation, and no more. I do not agree. It is plain that the reasonableness of any explanation given is a relevant consideration in weighing whether to grant an extension. It is not the case that any explanation will suffice or carry the same weight. Nor is it the case that, as the applicants submitted, the fact an explanation has been tested in cross-examination before the primary judge means it must be accepted as sufficient. To the extent that the applicants submitted the relevant issue is whether the explanation is reasonable, rather than satisfactory, that submission fails to appreciate that either would require a consideration of the merits of the explanation. That submission also fails to recognise that in the finding at J[62] recited above, the primary judge concluded that there was a “lack of reasonable explanation” for the delay. The applicants did not point to any error in that conclusion, or otherwise address it.

27    The applicants have not established that the primary judge “failed to pay careful attention” to their evidence and submissions, which is the ground of review. A proper consideration of the reasons of the primary judge reflects a detailed consideration of the relevant evidence and submissions. Having considered these, the primary judge concluded she “was not satisfied that the extension of time is needed in the interests of the administration of justice”: J[112]. Accordingly, the extension of time was refused: J[113]. That conclusion was open to the primary judge. The applicants have not established any error in the factual findings of the primary judge, let alone a jurisdictional one.

Ground 2

28    The ground complains the primary judge, by ultimately determining not to grant the extension of time, “failed to apply the correct test”. The applicants did not identify in written or oral submissions any specific error in the test applied by the primary judge. Nor did the applicants challenge the correctness of the summary of the principles at J[41]-[43]:

[41]    The second limb of s 477(2)(b) provides that the Court can grant an extension of time for the filing of an application if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.

[42]    The legislation does not prescribe or confine what factors a court should consider to determine whether extension of time is necessary in the interests of the administration of justice, pursuant to s 477(2) of the Act (see SZTES v Minister for Immigration and Border Protection [2015] FCA 719 per Wigney J). Courts commonly take into consideration principles such as the length of the delay, whether there is an adequate explanation for the delay, any prejudice to the Minister and the merits of the proposed substantive application: see, for example: SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 (SZRIQ) per Foster J at [46]-[48].

[43]    In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 (Katoa) the majority of the High Court held at [12] that:

(a)    the focus in considering whether to grant the extension of time is not on the interests of the applicant, but on the broader interests of the administration of justice;

(b)    the court can look at a myriad of facts and circumstances; and

(c)    the court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

29    Rather, the argument seems to be with the result of the application of that test. At best, the applicants’ contention appears to be that the primary judge should have reached a different conclusion. That submission fails to address the issue raised in the ground, but rather appears to assert that having found substantial merit in the substance of the application, an extension ought necessarily be granted: see J[86] and J[96]. In this context, I note the primary judge gave considered reasons explaining that while the merits of the case are strong, the consequences or injustice that would result from refusing to grant an extension are not as serious as in other cases which had been referred to: e.g. J[96], [108]-[109]. The applicants did not address that aspect of those paragraphs. The applicants’ submission misunderstands the relevant test and issues that arose for consideration in this case.

30    So too does the submission that the applicants have come to the Court “believe[ing] there is an injustice” and to “obtain justice”, and as such “justice is to be viewed from the applicant view and the interests of the administration of justice is from the point of view of the applicant and applicants alone”. That submission was directed to the meaning of the administration of justice in s 477(2) of the Migration Act. It cannot be accepted. It finds no support in s 477(2) or the authorities, including those relied on by the applicants: e.g. see Katoa at [12], recited above.

31    As the Minister submitted, the primary judge applied the correct test in s 477(2): see e.g. J[41]-[43] at [28] above. That test does not require that an extension of time must always be granted where a primary judge has found merit in the underlying application for judicial review of a decision. Rather, the test is what is “necessary in the interests of the administration of justice”, as her Honour recognised and applied at J[112], recited above. That is the issue that was to be addressed by the primary judge. The Minister’s submission is correct.

32    The applicants have not established this ground of review.

Conclusion

33    The application is refused, with costs.

Associate:

Dated:    13 October 2026