Suksawat v Minister for Immigration and Citizenship - Migration Appeal

Original Word Document (86 KB) Federal Court of Australia

Suksawat v Minister for Immigration and Citizenship [2026] FCA 353

| Appeal from: | Suksawat v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 577 |
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| File number(s): | NSD 859 of 2023 |
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| Judgment of: | LEE J |
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| Date of judgment: | 25 March 2026 |
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| Catchwords: | MIGRATION – application for extension of time to appeal – short delay – unrepresented applicant – merits of proposed appeal – disagreement with Tribunal’s findings not an appealable error – no evidence of enrolment for student visa – failure to respond to s 359(2) of the Migration Act 1958 (Cth) request – Tribunal entitled to proceed without hearing – primary judge correct – extension refused – costs fixed |
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| Legislation: | Migration Act 1958 (Cth) ss 359(2), 360(3)

Migration Regulations 1994 (Cth) Sch 2, cl 500.211(a)

Federal Court Rules 2011 (Cth) rr 36.03, 2.25(3) |
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| Cases cited: | Abraham v Minister for Immigration and Citizenship [2026] FCA 100

Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413

Kaur v Minister for Immigration and Citizenship [2026] FCA 271

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Suksawat v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 577

SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 11 |
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| Date of hearing: | 25 March 2026 |
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| Solicitor for the applicants: | The first applicant appeared in person |
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| Solicitor for the first respondent: | Mr Burke of Sparke Helmore Lawyers |
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| Solicitor for the second respondent: | The second respondent entered a submitting notice, save as to costs |
ORDERS

| | | NSD 859 of 2023 |
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| BETWEEN: | VANITCHA SUKSAWAT

Applicant

YEW FOONG LOW

Second Applicant

YI LI LOW (and another named in the Schedule)

Third Applicant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | LEE J |
| DATE OF ORDER: | 25 MARCH 20 26 |
THE COURT ORDERS THAT:

1. The name of the first respondent be changed to Minister for Immigration and Citizensh ip.

2. The application for an extension of time to appeal be dismissed with costs, fixed in the amount of $4,500.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INtroduction and Background

1 This is an application for an extension of time to appeal from the orders made by the primary judge in Suksawat v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 577 (PJ) delivered on 7 July 2023. His Honour dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), which affirmed a decision of a delegate of the Minister (Minister) to refuse to grant a Student (Temporary) (Class TU) visa to the first applicant.

2 The second, third and fourth applicants are the husband and children of the first applicant, who has represented herself this morning with the assistance of an interpreter. After making enquiries, I am satisfied that the second, third and fourth applicants are aware of the hearing of the application and have agreed for the first applicant to say anything to the Court on their behalf that they wish to be said.

3 Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth) (FCR), a notice of appeal was required to be filed within 28 days of the PJ, being 4 August 2023. The application for an extension of time was filed after 4:30pm on Friday, 11 August 2023. This means that it was accepted for filing on 14 August 2023 pursuant to r 2.25(3) of the FCR. The delay is 10 days.

4 As Katzmann J observed in SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 (at [16]), a determination as to whether an applicant should be given an extension of time to appeal involves consideration of the length of the delay, the explanation for the delay and any prejudice the respondent might suffer and the merits of the proposed appeal.

5 The delay of 10 days is in the scheme of things, quite short. The evidence adduced by the first applicant explains that no solicitor wanted to take her case. This necessitated her lodging the online application herself, and the online account registration took one day to be approved. Even though the first applicant took no steps to file the application until six days after the prescribed period had ended, she is unrepresented, and I would have been inclined to grant the extension of time in the event that I considered that the proposed appeal had any underlying merit.

b    Consideration

6 The sole proposed ground of appeal is that the first applicant meets all conditions for the grant of a student visa. This is merely an expression of disagreement with the Tribunal’s dispositive finding and impermissibly seeks merits review: see Abraham v Minister for Immigration and Citizenship [2026] FCA 100 (at [44] per Perry J) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

7 At the time of the Tribunal’s decision, cl 500.211(a) of Sch 2 to the Migration Regulations 1994 (Cth) required the first applicant to be enrolled in a registered course of study. The Tribunal correctly found, based on the evidence before it, that her Confirmation of Enrolment expired on 14 July 2019, and there was no evidence of future enrolment.

8 Ultimately, the primary judge found no error in the Tribunal’s decision to proceed without a hearing as first applicant failed to respond to a request for information under s 359(2) of the Migration Act 1958 (Cth) within the prescribed time, thereby losing her entitlement to appear before the Tribunal under s 360(3): see Kaur v Minister for Immigration and Citizenship [2026] FCA 271 (at [62]–[65] per Raper J) and Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 (at 419 [48] per Jacobson, Gilmour and Foster JJ).

9 The primary judge was correct to find that it was reasonably open to the Tribunal to refuse an adjournment and determine the matter on the material before it.

C    Conclusion

10 As the proposed appeal has no reasonable prospects of success, the application for an extension of time should be dismissed with costs.

11 The Minister submits that fixing costs in the amount of $4,500 is appropriate in this matter, given it is less than the amount that can be claimed in a short-form bill for an application for an extension of time to appeal involving a migration decision. There is some benefit in cases such as this to proceed to quantification as simply as possible. In all the circumstances, the amount sought is reasonable and proportionate to the nature of the case, and I see no reason why a further order ought not be made that the first respondent’s costs be fixed in the amount of $4,500.

| I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. |
Associate:

Dated: 27 March 2026

SCHEDULE OF PARTIES

| | NSD 859 of 2023 |
| Fourth Applicant: | YI DE LOW |
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