Abideen v Minister for Immigration and Citizenship
[2025] FedCFamC2G 852
•20 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abideen v Minister for Immigration and Citizenship [2025] FedCFamC2G 852
File number(s): MLG 76 of 2022 Judgment of: JUDGE CORBETT Date of judgment: 20 May 2025 Catchwords: MIGRATION - Student (Temporary) (Class TU) visa – Application for review of a Registrar’s decision – Whether reasonable prospects of success – Summarily dismissed pursuant to 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – Costs ordered. Legislation: Migration Act 1958 (Cth), ss 362(1A)(b), 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.13(a), 21.02, 21.04
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 20 May 2025 Date of hearing: 20 May 2025 Place: Melbourne Solicitor for the Applicant The applicant appeared in person, self-represented Solicitor for the Respondents Ms A Ali, Minter Ellison ORDERS
MLG 76 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD ZAIN UL ABIDEEN
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
20 MAY 2025
THE COURT ORDERS THAT:
1.The application for review filed by the applicant on 10 April 2025 will be dismissed; and
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application for review of the Registrar’s decision fixed in the sum of $2,316.45.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Revised from transcript)JUDGE CORBETT
These are the reasons for judgment delivered ex tempore on 20 May 2025, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor matters to reflect the intention of the Court.
By an application for review filed with the Court on 10 April 2025, the applicant seeks review of a decision of a Registrar of this Court made 3 April 2025 (Review Application). The Registrar summarily dismissed the applicant’s application for judicial review filed 8 January 2025 on the grounds that it had no reasonable prospects of success (r 13.13(a) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules)). The application for judicial review sought judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Act), to review a decision made by the second respondent (Tribunal) dated 5 December 2021 (CB 152-3).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R1”.
BACKGROUND
The applicant is a citizen of Pakistan.
On 15 March 2019, the applicant applied for a Student (Temporary) (Class TU) visa to undertake studies in a Master of Business Administration in Sydney (CB 20-34). The application was made with the assistance of a registered migration agent and sought a Higher Education Sector (Subclass 500) visa for a period of study between 13 May 2020 and 28 April 2022.
On 14 August 2019, the application for the visa was rejected by a delegate of the Minister. One of the reasons for which the delegate refused the application for the visa was that reliance was placed upon a document that was deemed to be a bogus university degree from a university in Pakistan.
On 2 September 2019, the applicant applied to the Tribunal to review the decision of the delegate and appointed legal representation (CB 80-1).
On 30 September 2021, the Tribunal sent an invitation to the applicant inviting him to attend a hearing scheduled for 21 October 2021 (CB 97-110).
On 20 October 2021, the day before the proposed hearing date, the solicitor for the applicant requested an adjournment because the applicant was said to have been unwell and having personal issues. On the day of the scheduled hearing, there was no appearance by the applicant or his solicitor. The Tribunal adjourned the hearing of the application for review, and a further invitation to attend a hearing was sent to the applicant’s solicitor on 3 November 2022 (CB 121-9).
On 18 November 2022, there was a further hearing before the Tribunal, however, again there was no appearance of the applicant and or by his legal representative. On that occasion, the Tribunal dismissed the application for review for non-appearance pursuant to s 362(1A)(b) of the Act. At that time, the applicant and his legal representative were informed of the right to seek reinstatement of the application for review, but no application for reinstatement was made on behalf of the applicant within the time provided which was fourteen days.
On 5 December 2022, the Tribunal dismissed the application for review, as it was required to do (Decision).
PROCEEDINGS IN THIS COURT
On 8 January 2023, the applicant filed an application for judicial review to this Court (Review Application). The first respondent (Minister) sought summary dismissal of the application for judicial review pursuant to r 13.13(a) of the Rules.
On 10 April 2025, the Review Application was filed with this Court, which means that the hearing today is a hearing de novo, as both the criteria in r 21.02 of the Rules for an application to be in, writing and made within seven days of the Registrar’s decision, has been complied with. Therefore, pursuant to r 21.04 of the Rules, this is a hearing de novo of the application for summary dismissal.
Ms Ali, solicitor, appeared on behalf of the Minister, and the applicant appeared in person, self-represented. The applicant was offered the assistance of an interpreter fluent in the Urdu and English languages but declined and was able to present his submissions and arguments to the Court in a very competent and able manner with strong and adequate English language skills.
Ms Ali, on behalf of the Minister, explained that the grounds of review contained in the application for judicial review lacked proper particulars and did not identify any basis upon which the Tribunal had erred, let alone any material jurisdictional error which required that the matter be referred back to the Tribunal for redetermination or reassessment.
The grounds of review contained in the application for judicial review were threefold, the first ground being that the Tribunal made a jurisdictional error whilst making a decision on the application. The second ground was that the Tribunal failed to accord procedural fairness and thereby erred in exercising its jurisdiction, and the third ground, that the Tribunal failed to consider all circumstances of the case and to observe the principles of natural justice.
The Minister submitted that none of those grounds were apparent from the reasons given by the Tribunal in the Decision, which were simply to dismiss the application for review on the basis of non-appearance and then finally dismiss the application on the basis that no application for reinstatement had been made on behalf of the applicant.
The applicant appeared today and submitted that there had been misconduct by a former migration agent on his behalf in submitting false documents to the Minister in support of his application for a student visa.
There has been no affidavit or other evidence presented to either the Tribunal or this Court to substantiate any misconduct or basis upon which to obtain a student visa based upon proper materials.
The applicant correctly conceded that there had been no error on behalf of the Tribunal in dismissing his application for review, because there had been no appearance on the two occasions on which the matter had been listed for hearing. The applicant was unable to identify any jurisdictional error by the Tribunal or any failure to afford the applicant procedural fairness, or any error of law of the kind identified in grounds of review in the application for judicial review.
I have considered the documents in the Court Book and the reasons for the Decision given by the Tribunal, and I can identify no basis upon which there has been jurisdictional error or any failure to accord the applicant procedural fairness. It appears entirely reasonable for the Tribunal to have dismissed the application for review based upon non-appearance, especially in circumstances where there had been no engagement by the applicant or his legal adviser as to the application for review, or any basis upon which the delegate’s decision ought to be altered.
There was no evidence put before the Tribunal of the alleged misconduct by the former migration agent which the applicant referred to today. There was also no evidence put before the Registrar when considering the application for summary dismissal on 3 April 2025.
In the circumstances of this case, there is no evidence to suggest that there has been any error on behalf of the Tribunal in the exercise of its discretion to dismiss the application for review, and there is no material jurisdictional error evident from the Decision or from any of the documents contained in the Court Book. I am satisfied that the application for summary dismissal has merit and that there are no reasonable grounds for prosecuting the application for judicial review. To use the words of the Rules, the claim for relief by the applicant in this proceeding has no reasonable prospects of successful prosecution of the proceeding or his claims in the proceeding (r 13.13(a) of the Rules).
For those reasons, the application for summary dismissal made by the Minister will be upheld, and the orders of the Registrar made on 3 April 2025 will not be altered or set aside and will remain on foot. The application for judicial review is to stand dismissed.
The Minister has also applied for the costs and disbursements of and incidental to the application for review in the sum of $2,316.45, which is 75 per cent of the scale figure for party/party costs. In the circumstances of this case and given that the Minister has been required to provide further updated outline of submissions and to appear today, the figure of $2,316.45 is fair and reasonable in the circumstances of this case and will be ordered to be paid by the applicant in addition to the order of costs made by the Registrar on 3 April 2025.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 4 June 2025
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