Aakash v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1532
•19 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aakash v Minister for Immigration and Citizenship [2025] FedCFamC2G 1532
File number(s): MLG 1131 of 2023 Judgment of: JUDGE JOHNS Date of judgment: 19 September 2025 Catchwords: MIGRATION - Temporary Graduate (class VC) Temporary Graduate (Post-Study Work) (subclass 485) visa– refusal for failure to apply for police check – no real or genuine dispute that resolvable in an applicant’s favour- application for review of Registrar’s summary dismissal– no reasonably arguable error– futility of remittal– application dismissed Legislation: Australian Constitution s 75(v)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 140, 143, 254, 256
Migration Act 1958 (Cth) ss 496, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13, 21.01 item 58
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) rr 1.10, 3.05-3.08, 8.29, 8.31, 23.08 clc
Migration Regulations 1994 (Cth) sch 2 sub-div 485.2 note, sch 2 sub-div 485.2 cl 485.213Cases cited: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368
Australian Securities and Investment Commission v Cassimatis [2013] FCA 641
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307
Bechara v Bates [2021] FCFAFC 34
EDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 826
FRA18 v Minister for Home Affairs [2019] FCCA 2287
Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 921Singh v Minister for Immigration, Citizenship &
Multicultural Affairs [2022] FedCFamC2G 889
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 16 September 2025 Place: Melbourne Applicant: Applicant appeared in-person on own behalf Solicitor for the First Respondent: Mr Stanley Mak, solicitor at AGS, appeared on behalf of First Respondent Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1131 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD KAUSER PARVEZ AAKASH
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
19 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application for judicial review filed on 20 December 2021 is summarily dismissed pursuant to r 23.08(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE JOHNS
INTRODUCTION
This matter is a review of a decision, made by a Registrar of this Court, to summarily dismiss an application for judicial review made by Mr MD Kauser Parvez Aakash.
In short, the background to the matter is as follows:
(1)on 30 April 2020, Mr Aakash applied for a temporary graduate visa. When making the visa application the Applicant indicated that he had not complied with the mandatory requirement to obtain an Australian Federal Police check;[1]
(2)on 13 August 2021, the visa application was refused by a delegate of the then Minister for Home Affairs because, at the time of lodging his application (and in the 12 months preceding), he had not applied for an Australian Federal Police check. This was a fact fatal to his visa, and one that could not be cured;[2]
(3)on 18 November 2021, the Administrative Appeals Tribunal affirmed the delegate’s decision for the same reason (i.e. that the requisite police check application had not been made at the time he applied for his visa);[3]
(4)on 20 December 2021 (amended on 16 September 2025), Mr Aakash applied to have the Tribunal’s decision judicially reviewed;
(5)on 26 August 2025, a Registrar of this Court summarily dismissed the application for judicial review on the basis that Mr Aakash had no reasonable prospect of success. The Applicant was ordered to pay the Minister’s costs in the amount of $4,000;
(6)on 1 September 2025, Mr Aakash applied for review of the Registrar’s decision. It is this application with which these reasons are concerned.
[1] Court Book 15-29 (‘CB’).
[2] CB 63-70.
[3] CB 104-18.
This review is a hearing de novo.[4] That is to say, this decision is not concerned with correcting any error on behalf of the Registrar but is “a fresh hearing which may result in a different order having the effect of undoing or revoking the decision of the registrar.”[5]
[4] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 3.08.
[5] BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307, [11]. See also Bechara v Bates [2021] FCFAFC 34; (2021) 286 FCR 166, [1]-[7].
For the reasons that follow, this Court summarily dismisses the application for judicial reviewed filed on 20 December 2021.
RELEVANT LEGISLATION
Section 65 of the Migration Act1958 (Cth) (Act) empowers the Minister (and their delegates by extension)[6] to refuse a valid visa application where the prescribed criteria for the grant of the visa are not satisfied.
[6] See Migration Act 1958 (Cth) ss 496-7.
The Migration Regulations 1994 (Cth) (Regulations) mandate that all (primary) applicants for subclass 485 visas satisfy the primary criteria.[7] Clause 485.213 of Schedule 2 of the Regulations (Police Check Criterion) is one such criteria. At the time of Mr Aakash’s visa application, it read:
[7] Migration Regulations 1994 (Cth) sch 2 sub-div 485.2 note.
485.213
When the application was made, it was accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.
The Police Check Criterion is mandatory. Somewhat oddly it is possible (or at least, was possible at the time the application was made) to submit an application for a visa without satisfying the mandatory requirement even though it means that the visa application is doomed to fail.
FACTUAL BACKGROUND
The Applicant is a citizen of Bangladesh. On 30 April 2020, he applied for a Temporary Graduate (class VC) Temporary Graduate (Post-Study Work) (subclass 485) visa (Temporary Graduate Visa).[8] In the Visa application, in response to the question, “Have you… applied in the last 12 months to the Australian Federal Police for a check of criminal records?”, the Applicant answered, “No”.
[8] CB 15-29.
The question seeks to establish whether an applicant satisfies, at the time of lodgement, the Police Check Criterion; Mr Aakash’s response (correctly) indicated that he did not.
On 10 July 2020, thus subsequent to lodgement, Mr Aakash applied for a National Police Certificate: Complete Disclosure.[9] This was issued on 13 July 2020.[10]
[9] CB 62.
[10] CB 41.
On 3 July 2021, Mr Aakash was issued another police check, this time a National Police Certificate: Immigration/Citizenship.[11]
[11] CB 61.
On 13 August 2021, Mr Aakash was notified by a delegate of the Minister for Home Affairs (Delegate) that his Temporary Graduate Visa application had been refused because he did not satisfy the Police Check Criterion; this was because neither one of the checks obtained by Mr Aakash were applied for prior to his visa application being lodged.[12]
[12] CB 63-70.
On 2 September 2021, Mr Aakash applied to the Administrative Appeals Tribunal (Tribunal) for review of the Delegate’s decision.[13] Appended to his application was a Statement of Purpose in which the applicant conceded that he had failed to satisfy the Police Check Criterion and sought to explain this failure.[14] In a more specific sense, Mr Aakash explained:
(a)that his initial plans “were to finish [his] Bachelor of Information Technology… get two years of experience in Australia”, (ostensibly on the Temporary Graduate Visa), “and then go [back] to Bangladesh to start an IT career”;
(b)at the time of his visa lodgement, he was in “disarray”, “distracted” and that his “mental state” was suffering. This was the result of, a month prior to his application deadline:
(i)the borders closing in response to the COVID-10 pandemic, and the Applicant’s related decision to stay in Australia, away from his family;
(ii)the Applicant’s grandmother passing away. The Applicant described the close bond he shared with his grandmother, as well as the distress he experienced as a result of not being able to support his family, who were “not doing well”;
(c)as the result of his mental state at the time of lodgement, the Applicant overlooked the Police Check Criterion attached to the visa applied for. [15]
[13] CB 71-9.
[14] CB 80-2.
[15] CB 80-2.
On 3 November 2021, Mr Aakash was invited by the Tribunal to attend a hearing scheduled for 18 November 2021.[16]
[16] CB 87-91.
On 16 November 2021, Mr Aakash, via his migration agent Rashmi Panwar,[17] responded affirmatively to the hearing invitation[18] and, made written submissions.[19]
[17] CB 92.
[18] CB 96-99.
[19] CB 100-2.
The submissions in question more-or-less reiterated what had been previously submitted in Mr Aakash’s Statement of Purpose, namely, that his failure to comply with the Police Check Criterion had been precipitated by the emotional turmoil the Applicant was experiencing at the time of lodgement.[20]
[20] CB 100-2
On 18 November 2021, the hearing went ahead as scheduled; Mr Aakash attended in-person accompanied by Ms Panwar. During the hearing, the Tribunal orally affirmed the decision of the Delegate and provided reasons. Later that day, the decision was reiterated via email, without attached reasons.[21]
[21] CB 104-12.
On 20 January 2022, the Tribunal furnished the Applicant with written reasons for its decision. The written reasons are brief, spanning 2 pages and 14 paragraphs.[22]
[22] CB 116-8.
In essence, they outline the circumstances leading to the Delegate’s decision and the explanation provided by the Applicant before ultimately affirming that “the police check is a mandatory requirement that must be met at the time of lodging the… visa application”. Given the Applicant’s failure to provide evidence of his having satisfied this requirement, the Delegate’s decision was affirmed. [23]
PROCEEDINGS IN THIS COURT
[23] CB 116-8.
Judicial review application
On 20 December 2021, the Applicant filed an application with this Court to have the decision of the Tribunal judicially reviewed (Originating Application).
The application was filed within the 35-day time limit prescribed by the Act,[24] and brought pursuant to section 476 of the Act, which confers upon this court, in relation to migration decisions, the “same original jurisdiction as the High Court under s 75(v) of the Constitution”. That is, the Court may undertake judicial review, in respect of matters “where a writ of mandamus or prohibition, or an injunction, is sought against an officer of the Commonwealth.”[25]
[24] Migration Act 1958 (Cth) s 477(1).
[25] EDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 826, [64].
The Originating Application contained three grounds of review (addressed below) and sought, as the sole remedy, an order that the decision of the Tribunal be quashed (writ of certiorari).
On 19 January 2021, the Minister filed a response which sought, among other orders, that the matter be summarily dismissed (Summary Dismissal Application) pursuant to rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Summary dismissal hearing
On 30 May 2025, a Registrar of this Court made orders programming the Summary Dismissal Application for hearing. The orders directed the parties to file submissions. Orders were also made amending the name of the First Respondent to the Minister for Immigration and Citizenship.
In response to the Registrar’s order, on 3 June 2025, the Minister filed:
(a)the Affidavit of Michelle Elizabeth Stone, appending a screenshot of the Department’s Integrated Client Services Environment (ICSE) database, namely, a record in the ICSE of the Applicant’s visa history;
(b)written submissions; and
(c)an outline of the authorities;
No further documents were filed by the Applicant.
On 26 August 2025, the Registrar acceded to the Minister’s application to summarily dismiss the Originating Application (Dismissal Decision).[26]
[26] N.b. power is conferred on Registrar by operation of: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254; and Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 21.01 item 58 (since superseded).
On 1 September 2025 the 2021 Rules were replaced by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 Rules).
Filing of review application
Also on 1 September 2025, Mr Aakash applied to have the Registrar’s use of the delegated summary dismissal power reviewed (Review Application). [27]
[27] N.b. application made pursuant to: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256; and Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) div 3.05-3.08.
The Review Application disclosed that the following orders were sought by Mr Aakash:
(1)“[t]hat the order of Registrar Lindsay dated 26 August 2025 dismissing the application under rule 13.13(a) be set aside”;
(2)“[t]hat the order requiring the Applicant to pay the First Respondent’s costs of $4000 be set aside”;
(3)“[s]uch further or other orders as the Court considers appropriate”.
The Application was brought within the 21-day time limit prescribed by the Rules.[28]
[28] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 3.06.
The matter was allocated to the Court as presently constituted on 8 September 2025 and listed for hearing that same day.
On 12 September 2025, the Court invited the parties to make further submissions in relation to the Application for Review by 4.00 pm on 15 September 2025. The Applicant did not avail himself of the opportunity.
On 15 September 2025, the First Respondent filed written submissions and sought the following orders:
(a)The application for summary dismissal in response filed on 19 January 2022 be substituted for an application for summary judgment under r 23.08(1)(a) of the 2025 Rules.
(b)Pursuant to r 1.10 of the 2025 Rules, the requirements in rr 8.29 and 8.31 of the 2025 Rules for the filing and service of a further amended response be dispensed with.
The additional orders were necessary because of the commencement of the 2025 Rules. The orders were made without objection by the Applicant. The Court as presently constituted noted that the amendments were technical in nature and did not change the substance of First Respondent’s amended reply filed on 19 January 2022. The Court as presently constituted granted the second order because it was satisfied that that the Applicants suffered no prejudice if the requirements of filing and service were dispensed with.
Hearing of the Review Application
On 16 September 2025 the Review Application was heard by this Court in the Melbourne Registry. The:
(a)Applicant appeared for himself in person. The Applicant was able to present his submissions and arguments to the Court in a competent and able manner. He demonstrated English language skills. No interpreter was required; and
(b)Minister was represented by Mr Stanley Mak, a Senior Lawyer at the Australian Government Solicitor, who appeared in person.
At the commencement of the hearing, the Court explained to the Applicant that the Court cannot set aside the decision of the Tribunal unless there is an arguable case of jurisdictional error. It was further explained that in a review hearing the test to be applied is whether there is a real or genuine dispute that might reasonably be resolved in the Applicant’s favour.
The Court also noted that the Originating Application only sought an order to quash the Tribunal’s decision and did not seek a writ of mandamus requesting the matter be remitted to the Tribunal. An application that fails to seek a writ of mandamus or prohibition, or an injunction, has the result of not properly invoking the Court’s jurisdiction pursuant to s 476(1) of the Act.[29] Noting that the Applicant was unrepresented, it is understandable that the he may not have appreciated the importance of this technicality, and noting that the solicitors for the Minister have not raised this technicality in the written submissions made on behalf of the Minister (and did not oppose amendment), the Court ordered that the application dated 20 December 2021 be amended so as to seek a writ of mandamus. The Court has the power to do so, even on its own motion.[30] The Court found that it was in the interests of justice and the overarching purpose of the Rules to dispense with non-compliance and amend the Originating Application for the just disposition of this proceeding.
[29] FRA18 v Minister for Home Affairs [2019] FCCA 2287 at [15] and [21].
[30] Federal Circuit and Family Court of Australia Act (Cth) s 140; Singh v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 889 [44]–[51].
Noting that the Applicant was unrepresented, the Court gave the Applicant an opportunity to elaborate on his grounds of review and to outline any other concerns he might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection.[31]
[31] [2019] FCA 600, [7].
In answer to questions from the Court as presently constituted, the Applicant honestly conceded that:
(a)when he applied for the Temporary Graduate Visa he responded “No” to the question about the Police Check Criterion; and
(b)before the Tribunal in a written statement seeking merits review and in a further written statement filed with the Tribunal, he conceded that he had not applied for an Australian Federal Police check prior to lodging the visa application.
Before the Court,
(a)the Applicant made oral submissions explaining why he failed to satisfy the mandatory requirement and about his more recent personal circumstances. None of what was submitted by the Applicant supported a finding that the Tribunal engaged in jurisdictional error;
(b)Mr Mak relied upon the submissions on behalf of the Minister; and
(c)the Applicant was given an opportunity to make submissions in reply which he did – although, again, those submissions went to his personal circumstances and not the issue of jurisdictional error. This Court is sympathetic towards efforts made by the Applicant to work, study and make a life for himself in Australia. However, those matters are not relevant to the task before the Court in judicial review proceedings.
THE COURT’S SUMMARY DISMISSAL POWERS
As stated, the question of whether the judicial review application ought to be summarily dismissed is required to be considered on a de novo basis.[32]
[32] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 3.08.
Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides:
143 Summary judgment
…
(2) The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.
The Rules have changed since the Registrar’s decision. Accordingly, the Court’s power to give summary judgment is now provided for in rule 23.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
The Minister bears the onus in an application for summary dismissal to establish and satisfy the Court that the claims for relief made by the applicant(s) in the proceeding have no reasonable prospects of success.[33]
[33] Australian Securities and Investment Commission v Cassimatis [2013] FCA 641 at [45].
In Patel v Minister for Immigration and Citizenship, her Honour Judge Mansini reviewed a Registrar’s decision to summarily dismiss an application for judicial review on the basis that it lacked a reasonable prospect of success. Her Honour held:
40. … [T]he Court is concerned with whether the case raises a real or genuine dispute that might reasonably be resolved in an applicant’s favour as distinct from the identification of jurisdictional error in the Tribunal’s decision…
41. The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success. [34]
[34] Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 921, citing AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368, [33] and the cases cited therein.
The Court as presently constituted respectfully adopts her Honour’s reasoning.
CONSIDERATION
In their Originating Application, the Applicant sought judicial review on the following grounds:
1)Applicant was not aware of clause 485.213.
2)Applicant explained with evidence why he could not seek migration advice. Moreover during application processing time (April of 2020), there were lockdowns which did not allow the applicant to visit agent.
3)AAT did not consider the Applicants compelling reasons.
As her Honour observed in Patel:
39. … [I]t is worth noting that the task on judicial review is not to undertake a general review of the Tribunal’s decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law.[35]
[35] Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 921.
However, in accordance with the approach taken in Patel (and other similar matters) it is not necessary for this Court to engage in a detailed consideration of the grounds advanced by the Applicants, as would be required in substantive judicial review hearing.
That is because it is sufficient to outline a series of indisputable facts (themselves not contested by the Applicant) which make clear this matter does not involve a real or genuine dispute, nor one capable of being resolved in the Applicant’s favour:
(1)when making the visa application (and many times since) the Applicant has conceded that he did not satisfy the Police Check Criterion at the time he lodged his application for the Temporary Graduate Visa; and
(2)it was not contested by the Applicant that the Police Check Criterion was a mandatory requirement for the visa he sought, nor that this requirement was not conditioned by a need to consider any extenuating circumstances affecting the Applicant’s compliance.
The above indisputable facts mean that, even if the Applicant could successfully establish error on behalf of the Tribunal, the question of futility would render such a finding nugatory. Remittal would be futile because the result would have to be the same. This is because, at no point in the 12 months immediately before the day he applied for the visa had he applied for an Australian Federal Police check. Nothing can cure this deficiency: the Delegate and the Tribunal made the only decisions open to them. Before this Court the Applicant acknowledged that he understood the futility argument.
Although it is unnecessary to do so (for the reasons explained above), for completeness, the Court has considered the three grounds for judicial review contained in the Originating Application. The Applicant’s contention that he was not aware of clause 485.213 does not absolve him from compliance. Ignorance of the mandatory requirement is no excuse. The fact of lockdowns does not establish jurisdictional error on behalf of the Tribunal. Finally it must be rejected that the Tribunal “did not consider the Applicant’s compelling reasons”. The Tribunal did, but those reasons did not remedy the failure to comply with a mandatory requirement. The Court is satisfied that the Applicant does not have a reasonable prospect of proving that the Tribunal’s decision is affected by jurisdictional error. Nothing submitted to this Court by the Applicant alters the Court’s view about the Applicants’ prospects of success.
As stated above, it is curious that it was possible for the Applicant to submit his application for the visa, whilst expressly making clear in that application that he did not satisfy a mandatory requirement. Because the Applicant did not comply with the Police Check Criterion his visa application, submitted on 30 April 2020, was always doomed to fail. However, the Applicant was on notice about that requirement. This is because the application form for a Temporary Graduate or Skilled Regional Visa states:
To be eligible to be granted a subclass 485 visa through the Post-study stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below, you may not be able to lodge or to be granted a visa. (emphasis added)
DISPOSITION
Because there is “no real or genuine dispute that might reasonably resolved in” Mr Aakash’s favour, this Court is satisfied he has no reasonable prospect of success in seeking to have the Tribunal’s decision quashed and remitted.
Accordingly, his application for judicial review is summarily dismissed in accordance with section 143 of the FCFCOA Act and rule 23.08(1)(a) of the Rules. Consequently, the Tribunal’s decision stands. The Court will hear the parties on costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate: JC
Dated: 19 September 2025
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