Devika is 24 and studied in Clayton on a student visa. Her college cancelled her course in March, so she enrolled elsewhere. The Department still refused her visa over a gap in its enrolment records. She went to the Administrative Review Tribunal alone. At the end of the hearing on 2 September 2026, the member said she would write if she needed more. Devika would have seven days to answer. She confirmed her email on the record and waited. No letter came. Instead, a decision dated 1 October 2026 affirmed the refusal. Today is day 10. She must decide whether to file in the Federal Circuit and Family Court by 5 November.
Short answer: Get the hearing transcript this week and file before day 35. The Court counts 35 days from the date of the Tribunal decision, not from the day you read the email. In Harpreet, decided on 22 September 2026, the Court set aside a refusal made this way. A member who says she will write must send the letter or withdraw the promise before deciding. Silence is not a third option.
The 35 days run from the decision date
The Federal Circuit and Family Court of Australia (Division 2) reviews Tribunal decisions for jurisdictional error. You must file an Originating application – Migration Act within 35 days of the date of the migration decision. The Court adds that this date may differ from the date on the notification letter. Consequently, the clock can start before you know the outcome. An extension is possible where it is in the interests of justice. However, you must ask for it in the application and explain the delay.
| Event in Devika’s file | Date |
|---|---|
| Hearing, member says she will write | 2 September 2026 |
| Tribunal decision affirming the refusal | 1 October 2026 |
| Today | 11 October 2026, day 10 |
| Last day to file without seeking an extension | 5 November 2026, day 35 |
What the Court decided in Harpreet
Harpreet v Minister for Immigration and Citizenship (No 2) [2026] FedCFamC2G 1848 was decided on 22 September 2026. The judgment was not public when we wrote this, so our account relies on the Migration Institute of Australia’s summary in MIA Notice 19 of 25 September 2026.
The applicant was an Indian citizen on a student visa, representing herself. At the end of the hearing, the member said she would write with any further questions or a request for documents. The applicant would have seven days to respond. The Tribunal then affirmed the refusal without writing. Its reason was a Department database record showing no current enrolment. At the hearing she had offered to obtain her confirmation of enrolment. The Tribunal decided without it.
The Court found jurisdictional error on three of the four grounds argued. As a result, the decision was set aside and remitted to the Tribunal for a fresh decision.
Three paths after a promise, and only two are fair
The Minister argued that the Tribunal had no legal duty to write a second time. The Court accepted that and held it did not matter. Applying the High Court’s reasoning in NAFF, the Court treated the promise itself as the problem. Once the member created the expectation, the Tribunal had two fair choices.
The Tribunal writes as it said it would. The applicant answers within seven days, including the enrolment document she offered. The Tribunal then decides on a complete file.
The Tribunal changes its mind about writing. In that case it must say so before it decides, so the applicant knows the door has closed. She can then send what she has without an invitation.
The Tribunal neither writes nor withdraws, and the refusal arrives. This is what happened in Harpreet. The Court found a denial of procedural fairness. The promise had led her to hold back the material the decision turned on.
Three facts strengthened her position: she was unrepresented, it was her first hearing, and she had confirmed her contact details for the letter. Any ambiguity in the member’s words was resolved in her favour.
The second error: deciding without the evidence it said it would seek
The same silence produced a separate ground. Because no letter went out, the Tribunal never received the enrolment material it had invited. The Court found the decision legally unreasonable for that reason as well. In other words, a Tribunal that promises to ask for a document cannot then hold its absence against you.Her new provider issued a confirmation of enrolment in April, and the Tribunal never saw it.
Testing your own file against Harpreet
Everything turns on the exact words used at the end of the hearing. The Minister’s lawyers will read the transcript closely, so order it today.
If the member only said she would consider the evidence, the argument is weaker. Either way, our refusals and review page explains how we assess a court application.
Court, new application or the Minister
Judicial review is not the only door after a Tribunal refusal. However, it is the only one with a 35-day clock.
| Path | What it tests | Best outcome |
|---|---|---|
| Judicial review in the Court | Legal error only. No new evidence on the merits | Decision set aside and remitted. The Court cannot grant the visa |
| A new visa application | The criteria today. Section 48 may bar most onshore applications after a refusal | A grant, often after applying from outside Australia |
| Ministerial intervention | Whether the Minister chooses to act. No duty to consider | A visa granted personally by the Minister, which is rare |
Our article on ministerial intervention explains why it is a last resort. Meanwhile, ask the Department the same day whether filing keeps your bridging visa alive. Our bridging visas page covers the detail.
From hearing to filing
- Hearing dayWrite down the member’s closing words before you leave. Confirm contact details on the record.
- Days 1 to 5 after the hearingEmail the Tribunal to confirm what was said and ask when the letter will come. Attach the document anyway.
- Decision dateThe 35 days start here, whatever the email timestamp says. Diarise day 35.
- Week 1 after the decisionRequest the transcript. Ask about your bridging visa.
- Weeks 2 to 4Grounds drafted from the transcript and the decision record.
- Before day 35Originating application filed. The Minister is served and has 28 days to respond.
A win in the Court gives you a fresh decision, not a visa. The Judge can send the case back to the Tribunal and stop the Minister acting on the quashed decision.This time, however, the enrolment document gets read.
Frequently asked questions
The Tribunal said it would write and then refused me. Have I already won?
No. Harpreet turned on the transcript and on the missing document mattering to the outcome. You still need to file within 35 days and prove the error. The remedy is a rehearing, not a grant.
How are the 35 days counted, and can the Court extend them?
The Court counts 35 days from the date of the migration decision, which can differ from the date on the letter. The Court can extend time in the interests of justice. However, you must ask in the application and explain the delay.
Can I send the enrolment document to the Tribunal now that it has decided?
The decision is final once made, so new material does not reopen it. Keep the document, with proof of when it was issued and when you offered it. It becomes evidence in the Court and in any rehearing.
Is judicial review the same as the ART review I just lost?
No. The Tribunal reviewed the merits and could grant or refuse on the facts, as our guide to how the Administrative Review Tribunal works explains. The Court reviews only whether the Tribunal made a jurisdictional error. The Judge cannot reconsider the facts or grant the visa.
Should I lodge a new visa application instead of going to court?
Sometimes, but check the bar first. Section 48 of the Migration Act limits the visas a person can apply for onshore after a refusal. A new application may mean leaving Australia. Compare the two before day 35, because only the court option expires.
The 35-day period, extensions and the Court’s powers verified 11 October 2026 on the Federal Circuit and Family Court pages Migration: Overview and Directions, callovers and court hearings. Harpreet [2026] FedCFamC2G 1848 is described from the Migration Institute of Australia’s summary in MIA Notice 19 of 25 September 2026; the judgment was not yet public.
General information as at 11 October 2026. Devika is a fictional example. Not legal advice.