Background
Muhammad Abdur Rehman, a Pakistani citizen, applied in 2019 for a student visa. After a delegate refused the visa, he sought merits review. The Tribunal later obtained information indicating that he was not enrolled in an Australian course and invited him under s 359A of the Migration Act 1958 (Cth) to respond by 16 November 2020. The invitation warned that any extension request also had to arrive by that date.
Rehman neither responded nor sought an extension before the deadline. He emailed an extension request late on 17 November, after the prescribed period had expired. The Tribunal affirmed the refusal on 18 November 2020 because it was not satisfied that he was enrolled in a registered course. The Federal Circuit and Family Court later granted Rehman additional time to seek judicial review but dismissed his substantive application. His proposed appeal to the Federal Court was filed 12 days late.
The Court’s Holding
Justice Lee dismissed the application for an extension of time to appeal. Although the delay was short and caused no particular prejudice to the Minister beyond costs and the public interest in finality, the proposed appeal lacked sufficient merit. Under the statutory scheme, the Tribunal’s power under s 359B(4) to extend the response period was unavailable after that period expired.
Because Rehman did not respond or request an extension by the deadline, s 359C(2) allowed the Tribunal to decide the review without taking further steps to obtain his views, s 360 deprived him of an entitlement to appear, and s 363A left the Tribunal with no residual power to permit an appearance. His procedural-fairness, legal-unreasonableness and related arguments could not create a discretion withdrawn by statute. The primary judge had also correctly distinguished judicial review from an attempt to submit new evidence or relitigate whether Rehman was genuinely a student.
The Court likewise rejected the proposed new ground relying on Rehman’s self-represented status, efforts to comply and humanitarian or financial circumstances. Those matters did not identify a legally required consideration or jurisdictional error. The Court ordered Rehman to pay the Minister’s costs, fixed at $4,150.
Key Takeaways
- A Tribunal extension request under s 359B must be made before the prescribed response period expires; the power to extend is unavailable afterward.
- Failure to respond on time can allow the Tribunal to decide without further consultation and eliminate the applicant’s entitlement to appear, with s 363A barring any residual permission to do so.
- A short appellate delay and lack of particular prejudice will not justify extending time where the proposed appeal has no reasonably arguable merit.
Why It Matters
The decision underscores the strict operation of statutory deadlines in Australian migration review. Practical hardship, self-representation and a request submitted shortly after the deadline cannot revive an extension power that has already expired or restore a hearing entitlement removed by the statutory scheme.
It also illustrates the importance of merits when seeking extra time to appeal: even where delay is modest and prejudice minimal, the Federal Court may refuse an extension if the underlying appeal would be futile.