Song v Minister for Immigration and Citizenship [2026] FCA 504

Original Word Document (90.9 KB) Federal Court of Australia

Song v Minister for Immigration and Citizenship [2026] FCA 504

| Appeal from: | Song v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 469 |

| File number(s): | NSD 108 of 2023 |

| Judgment of: | OWENS J |

| Date of judgment: | 24 April 2026 |

| Catchwords: | MIGRATION – application for extension of time to appeal from the Federal Circuit and Family Court of Australia (Div 2) – where applicants’ application for Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visas had been refused on the ground that a bogus document had been provided – where applicants explained delay on the ground of difficulty in filing documents – proposed ground of appeal demonstrated no error in decision of Tribunal or primary judge – application dismissed |

| Legislation: | Migration Act 1958 (Cth), s 375A

Federal Court Rules 2011 (Cth), rr 36.03(a)(i), 36.05

Migration Regulations 1994 (Cth), sch 2 cll 572.224, 572.322, 572.323, sch 4 cl 4020 |

| Cases cited: | AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425

ANA18 v Minister for Home Affairs [2018] FCA 1854

BJM15 v Minister for Immigration and Border Protection [2021] FCA 786

BQQ15 v Minister for Home Affairs [2019] FCAFC 218

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443; [2008] FCAFC 17

SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73; [2014] FCAFC 40

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |

| Division: | General Division |

| Registry: | New South Wales |

| National Practice Area: | Administrative and Constitutional Law and Human Rights |

| Number of paragraphs: | 36 |

| Date of hearing: | 21 April 2026 |

| Counsel for the Applicants: | The First Applicant appeared in person on behalf of the Applicants |

| Solicitor for the First Respondent: | Mr C Wang of Clayton Utz |

| Counsel for the Second Respondent: | The Second Respondent filed a submitting notice |
ORDERS

| NSD 108 of 2023 |

| BETWEEN: | HOOI SEE SONG

First Applicant

HENRY TAN

Second Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | OWENS J |
| DATE OF ORDER: | 24 APRIL 2026 |
THE COURT ORDERS THAT:

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

2. The application for an extension of time within which to appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

OWENS J:

1 The applicants apply, pursuant to rule 36.05 of the Federal Court Rules 2011 (Cth), for an extension of time within which to appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2): Song v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 469.

2 That judgment was delivered on 16 June 2022. Any appeal was, by reason of rule 36.03(a)(i) of the Rules, required to be filed on or before 14 July 2022. This application was lodged on 13 January 2023. It follows that the length of the extension required is approximately six months.

3 The applicants are citizens of Malaysia. They arrived in Australia in May 2015 as holders of Electronic Travel Authority (Class UD) (Subclass 601) visas, for the stated purpose of a five-day holiday.

4 On 13 June 2015 the applicants were still present in Australia, and got married in New South Wales. On 3 July 2015 the first applicant applied for a Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa. The second applicant was included in that visa application as a member of the first applicant’s family unit.

5 At the time of that application, the first applicant was enrolled to undertake a Certificate II in Business, Certificate III in Business Administration, and Certificate IV in Small Business Management.

6 On 28 July 2015, in response to a request by the Department, the applicants supplied documents in support of the application, including documents purportedly issued by a bank in Malaysia. On 15 October 2015, the Department informed the applicants that those bank documents were “not genuine and [had] been altered”, and invited them to comment. No response was provided to that invitation. On 14 March 2016, a delegate of the Minister refused to grant the applicants the visas for which they had applied, on the ground that the first applicant had “given or caused to be given a bogus document” and thus did not satisfy so-called PIC 4020 (a criterion set out in clause 4020 of Schedule 4 to the Migration Regulations 1994 (Cth), that the applicants were required to satisfy by reason of clauses 572.224, 572.322 and 572.323 in Schedule 2 to the Migration Regulations).

7 There followed an unsuccessful application to the Administrative Appeals Tribunal, and a successful application for judicial review by the Federal Circuit Court of Australia. On remitter, the Tribunal determined, once again, to affirm the delegate’s decision refusing to grant the visas. The critical conclusion of the Tribunal was that the applicants had provided a bogus document to the Minister, and that there were not compelling or compassionate reasons why the requirements of PIC 4020 should be waived.

8 The applicants then sought judicial review of that decision.

9 It was upon that application that the judgment in respect of which the applicants seek to appeal was given.

The Proposed Appeal

10 The applicants have identified only one proposed ground of appeal (which was in substantively the same terms as the single ground of judicial review advanced in the Court below):

I meet all the conditions to grant the student visa.

11 There are obvious difficulties with a ground of appeal expressed in such terms. It is nothing more than a bare assertion, unaccompanied by any particulars in support. It does not engage in any meaningful way with the reasons of the primary judge (let alone by identifying the respects in which it is said that his Honour erred), or the decision of the Tribunal (let alone by identifying the respects in which it is said that that decision involves jurisdictional error). On its face, it appears to raise only an argument concerning the substantive merits of the decision.

12 It goes without saying that, in circumstances where the applicants are unrepresented and could not be expected to have any real familiarity with the relevant legal principles, it would be unfair to demand more of them than they are capable of supplying. But nor is it appropriate to cast upon the Minister, or the Court, the onus of demonstrating the absence of any error in the decision of the primary judge or the Tribunal: see, e.g., ANA18 v Minister for Home Affairs [2018] FCA 1854 at 59. An unparticularised assertion of jurisdictional error has been held to be a sufficient basis upon which to dismiss proceedings: see, e.g., WZAVW v Minister for Immigratio n and Border Protection [2016] FCA 760 at 35. As Beach J observed in AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425 at [19]:

It is not incumbent on the Court to independently consider for itself whether such generic grounds might be capable of being particularised so as to identify a specific error made by the primary judge or a jurisdictional error made by the Tribunal.

13 In those circumstances, at the hearing of the application, I asked the first applicant (who also spoke for her husband) how it was that she contended the primary judge and the Tribunal made an error. Her response was to the effect that the primary judge had wrongly refused her request to supply additional documents that would have helped the applicants establish that they did, in fact, satisfy PIC 4020. She also said, in relation to the Tribunal, that the reason those further documents were not provided to it when it asked if the applicants had any response to the information that bogus documents had been provided, was because the agent who was acting for them at the time did not pass on the Tribunal’s invitation (or, possibly, did not pass on to the Tribunal information that was provided by the applicants).

14 I will return to the significance of all of this below.

Principles

15 The principles to be applied when considering an application for an extension of time within which to appeal are well known. A useful summary is found in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at 33:

Under rule 36.05, the Court may grant an extension of the time within which an appeal is to be filed. The principles applicable to the exercise of the Court’s discretion were set out in Hunter Valle y Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which were adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]:

(a)    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.

(b)    There must be some acceptable explanation for the delay.

(c)    Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.

(d)    The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.

(e)    The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Kra kouer (1998) 195 CLR 516 at [7]-[9].

(f)    The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]. This will be so particularly if the applicant is in immigration detention, requires the assistance of an interpreter and has limited knowledge of law and practice including the time for any appeal: Ar iaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14]; N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at 12. Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441 at [5]. Nevertheless, the merits of the appeal will remain a relevant factor: N1202/01A at [13].

16 It is also relevant to bear in mind, as Colvin J has observed in BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 at [37]:

There are authorities concerned with the extension of time in which to seek remedies in the exercise of this Court’s original jurisdiction (such as review for jurisdictional error) in respect of a migration decision, being a matter to which s 477A of the Migration Act applies. However, we are not here concerned with whether it is necessary in the interests of justice for the applicant to have access to that important review jurisdiction (which concerns the observance of the limits on the exercise of statutory power). Rather, in the present case, the applicant has had the benefit of access to such a review jurisdiction in the form of the application to the Circuit Court. The issue here is whether an extension of time should be granted to allow the applicant to pursue a statutory right of appeal a number of years after the decision of the primary judge was made. It is a determination 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.

The Explanation for delay

17 The applicants’ written explanation for their failure to commence an appeal in time (and for the delay in making this application) was contained in a document purporting to be an affidavit affirmed by both of them on 29 September 2022. It contained the following statement (reproduced verbatim):

16 June 2022 – I got refusal from your FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA, but no lawyor wants to take my case to lodge. 26 Aug 2022 – I lodged by myself but back to me not been accepted because I didn’t lodge proper documents. After it I contact with your court for several times to make sure what are the proper documents I need until 30 Sep 2022 then I lodged it again today 4 Oct 2022.

18 It is unclear why that document was dated 29 September 2022, and yet referred to events taking place after that date. Even taking it at face value, however, it does not provide any explanation for the delay from 4 October 2022 to 13 January 2023 when the present application was lodged.

19 In the hearing before me, the first applicant submitted that their efforts to file the documents commencing an appeal were complicated by the fact that there was a COVID-19 lockdown in the State in the period following delivery of the judgment. (I note that there was in fact no COVID-19 lockdown in New South Wales from June 2022 onwards.) In any event, her explanation was generally to the effect that the applicants had to teach themselves how to file the necessary documents, and it took them until January 2023 to do it.

Consideration

20 Fundamentally, the explanation offered by the applicants for their delay is that, in the absence of legal representation (which, despite their endeavours, they were unable to obtain), they experienced difficulties in complying with the procedural requirements necessary to commence an appeal. I accept that the applicants wanted to appeal, and that in order to do so they attempted to retain a lawyer and, when that did not eventuate, that they attempted to prepare and file the necessary documents themselves. I find it plausible that they may have experienced difficulties and challenges in that regard, and accept that that explains why they could not file this application before about late September or early October 2022.

21 The Minister submitted that, on their own account, the applicants were in a position to file the necessary documents by early October 2022 and that there was no explanation at all for why the application was then not lodged until January 2023. I have already indicated that, at the hearing of the application, the first applicant submitted that their difficulties had in fact extended all the way up to January 2023.

22 Even if the supplementary explanation offered by the first applicant is accepted, I consider that it does not satisfactorily explain the delay between October 2022 and January 2023. I can see no good reason why the applicants could not, with proper diligence, have lodged the application that they did in January 2023 by October 2022.

23 While an unexplained (or unsatisfactorily explained) delay of more than three months is far from the longest ever seen, it is nonetheless significant, and cannot comfortably be described as “short”.

24 The Minister did not suggest, of course, that he would suffer any specifically identifiable prejudice. But the significance of general considerations of delay needs still to be taken into account. As Colvin J observed in BJM15 at [40], in comments that remain apposite to an application for an extension of time such as the present:

The proposition by Gyles J in Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 to the effect that there is a significant public interest in the timely and effective disposal of litigation and delays in dealing with applications for protection visas are to be avoided if possible was applied in BQQ15 at [37]. The same passage has been applied in other decisions, particularly where leave is sought to raise a ground of appeal not advanced before the primary judge: see, for example, Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 200 at [89]-92. In the context of applications for prerogative writs it has been observed that there is a public interest that there be an end to litigation about any particular exercise of administrative power: Re Commonwealth of Australia (Department of Defence); Ex parte Marks [2000] HCA 67 at [15].

25 The substantial delay in the present case thus weighs heavily against granting an extension of time.

26 In those circumstances, an assessment of the merits of the proposed appeal will be a vitally important consideration in relation to the ultimate exercise of the discretion.

27 I have already referred to the fact that the applicants’ single proposed ground of appeal does not assist in any way in identifying the respects in which it is contended the primary judge’s decision was in error, nor the respects in which the Tribunal’s decision was said to involve jurisdictional error.

28 That ground would seem to be focused on the merits of the decision to refuse them their visas. They have not identified any basis, let alone an arguable basis, upon which it might be contended that the primary judge erred in failing to find jurisdictional error on the part of the Tribunal.

29 I have paid careful attention to the material relied upon by the applicants, and their submissions, so as to detect any argument that, in substance though not in form, might be thought to raise either appealable or jurisdictional error. I have discerned none.

30 The primary judge’s judgment contains a careful and comprehensive assessment of the Tribunal’s reasoning and conclusions. It also discloses that the primary judge assisted the applicants by explaining to them the concept of jurisdictional error, and the different ways in which it may manifest itself.

31 Because the critical basis upon which the Tribunal rejected the applicants’ case was the failure to satisfy PIC 4020, the primary judge analysed closely the validity of that part of the reasoning. His Honour did not identify any error in the Tribunal’s reasoning or conclusions, and I can discern none in his Honour’s judgment. To the extent that the applicants’ arguments sought to cavil with the Tribunal’s conclusion that the documents in question were bogus documents, that was a conclusion reasonably open to the Tribunal on the evidence before it. To the extent that they cavilled with the conclusion that there did not exist compelling or compassionate circumstances justifying granting the visa despite PIC 4020 not being satisfied, that conclusion was virtually inevitable on the material before the Tribunal, given that the applicants chose not to avail themselves of the offered opportunity to provide any information relevant to that question.

32 The primary judge also noted that the Tribunal had recorded that, on the Department file, there was a document that purported to be a certificate issued by a delegate of the Minister pursuant to s 375A of the Migration Act 1958 (Cth). The Tribunal had concluded, however, that the certificate was invalid because it did not refer to any particular Tribunal file number, and did not identify the documents to which it might apply. Furthermore, the Tribunal noted that the substance of all of the information possessed by the Tribunal relevant to the question of the bogus bank documents had in any event been disclosed to the applicants.

33 In those circumstances, the primary judge considered whether the failure to disclose the existence of the invalid certificate to the applicants constituted jurisdictional error. The primary judge proceeded on the basis that there was an obligation to notify the applicants of the certificate, but found that the failure to do so could not have been material: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [2]. In the particular circumstances of this case, I can see no error in that conclusion.

34 Finally, in relation to the particular submissions concerning error made by the first applicant at the hearing of the application before me:

(a) The submission that the primary judge erred in failing to give the applicants an opportunity to provide further documents that might be relevant to their satisfaction of PIC 4020 is not arguable. The primary judge correctly held that “new evidence” of that kind could not be relevant on an application for judicial review.

(b) The submission that the Tribunal’s decision was vitiated by the failure of the applicants’ agent to pass on the Tribunal’s invitation to respond to adverse information (or failure to pass on information from the applicants to the Tribunal) faces several hurdles. First, it was not raised before the primary judge, so leave would be required to raise it for the first time on appeal, and I consider it doubtful that such leave would be granted: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [46]. Secondly, there was no evidence to support the first applicant’s assertion, which was made for the very first time in oral argument before me. Thirdly, it is well settled that mere negligence, inadvertence or incompetence on the part of an agent representing a visa applicant will not constitute fraud so as to warrant judicial intervention: see, e.g., SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73; [2014] FCAFC 40 at [52]; Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443; [2008] FCAFC 17 at [33]. Even taking the first applicant’s submission at its highest, I do not consider that any suggestion of fraud on the part of their agent was intended or conveyed. It follows that, for all these reasons, I consider that any contention of jurisdictional error on this basis would fail.

35 It follows that I am not persuaded that the applicants have demonstrated that their appeal would have reasonable prospects of success. That fact, in combination with the length of the delay, the unsatisfactory explanation for the full duration of that delay, and the implications of the delay in terms of the policy considerations identified in the authorities to which I have referred above, persuade me that the grant of an extension would not do justice between the parties.

Conclusion

36 For those reasons, I would dismiss the application with costs.

| I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Owens. |
Associate:

Dated: 24 April 2026