Adnan v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1464
•5 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ADNAN v Minister for Immigration and Citizenship [2025] FedCFamC2G 1464
File number(s): SYG 112 of 2022 Judgment of: JUDGE CLEARY Date of judgment: 5 September 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal was misdirected in its statutory task in determining the student visa application – whether applicant met cl 500.213(1) – exemption in cl 500.213(2)(d) did not apply - no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) Sch 2 cl 500.213(1)
Cases cited: BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 42
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 28 August 2025 Place: Parramatta Applicants: In person Solicitor for the Respondents: Mr J O’Connell of HWL Ebsworth ORDERS
SYG 112 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SYEDA FIZZA ADNAN
First Applicant
SYED AALISHANN ALI
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
5 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The first applicant pay the first respondent’s costs fixed in the amount of $5,600.
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 typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.
REASONS FOR JUDGMENT
JUDGE CLEARY
INTRODUCTION
In this matter the applicants are challenging a migration decision under s 476 of the Migration Act 1958 (Cth) (Act). The applicants seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 20 December 2019 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the first applicant a Student (Subclass 500) visa (student visa) under s 65 of the Act.
BACKGROUND
On 1 April 2020, the applicants, citizens of Pakistan, lodged an application for a student visa. The first applicant is the primary applicant for the purpose of these proceedings. The second applicant is the first applicant’s dependent child, born on 11 August 2006.
On 19 June 2020, a delegate refused to grant the applicants a student visa on the basis that the delegate was not satisfied the first applicant had obtained the required score in an prescribed English language exam as required by cl 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and the Migration IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018 (IMMI 18/015).
On 7 July 2020, the applicants lodged an application for review of the delegate’s decision with the Tribunal.
On 19 January 2021, the applicants appointed a migration agent to act as their representative.
On 27 September 2021, the Tribunal sent the applicants' representative a hearing invitation for a hearing.
On 7 October 2021, the Tribunal invited the first applicant, through her representative, to provide further information in support of her review application, in particular information that the first applicant had completed a prescribed English language test since her last International Language Testing System (IELTS) test, in which a score of 4.0 was obtained.
On 11 October 2021, the Tribunal sent the first applicant, via her representative, an invitation to attend a hearing by video conference.
On 26 October 2021, the applicants’ representative asked for the hearing to be adjourned because the first applicant was unwell and provided a medical certificate stating that the first applicant was unfit for her usual activities.
On 27 October 2021, the Tribunal sent the applicants’, via their representative, an invitation to attend a postponed hearing scheduled for 1 November 2021.
On 28 October 2021, the applicants’ representative informed the Tribunal that the first applicant had booked an IELTS test for 11 November 2021 and expected to receive the results of that test 13 to 15 days after 11 November 2021. The first applicant's representative also informed the Tribunal that the first applicant had completed a Certificate IV in Commercial Cookery and provided evidence to reflect that.
On 1 November 2021, the applicants attended a hearing before the Tribunal.
On 20 December 2021, the Tribunal affirmed the decision not to grant the applicants a student visa.
TRIBUNAL DECISION
After setting out the relevant criteria for deciding the review application, the Tribunal identified that the primary issue before it, namely, whether the first applicant satisfied the English language criteria as required under cl 500.213 of Schedule 2 to the Regulations.
The Tribunal noted that the first applicant had taken an IELTS test on 19 January 2019 and obtained a score of 4.0, however, although another IELTS test was scheduled on 11 November 2021, no test score from the November 2021 test had been provided.
The Tribunal noted the first applicant had provided evidence of completion for a Certificate III and IV in Commercial Cookery course and evidence of a completion for a General English course.
In response to the Tribunal's inquiry about why the IELTS test was not taken at an earlier time, the first applicant's representative informed the Tribunal that there was an issue with the 'discipline of the child' and 'family violence' which had rendered the first applicant unfit to participate in an IELTS test for a period of time.
The Tribunal had regard to the requirements in IMMI 18/015, noting the first applicant had to meet those requirements or otherwise be exempt from them.
The Tribunal found that the first applicant's score of 4.0 in the 19 January 2019 IELTS test did not meet the test score requirements set out in IMMI 18/015.
The Tribunal also found that the first applicant was not exempt from the requirements of IMMI 18/015. Although she had provided evidence of completion for a Certificate IV in Commercial Cookery (completed on 28 March 2021), the Certificate IV had not been completed in the 2-year period prior to applying for the visa as required by cl 500.213(2)(d) of the Regulations.
The Tribunal affirmed the decision not to grant the applicants a student visa.
APPLICATION FOR REVIEW
On 24 January 2022, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision dated 20 December 2021. The application contains two (2) grounds of review. They are (as written):
1.The AAT made jurisdictional errors by being misdirected in its statutory task in determining my student visa application.
2.I am yet to engage a lawyer and will be providing updated grounds and particulars.
On 18 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application, written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.
On 11 June 2025, the proceedings were docketed to me and set down before me for final hearing on 28 August 2025.
HEARING ON 28 AUGUST 2025
At the hearing of this matter on 28 August 2025, the applicants appeared unrepresented assisted by an Urdu interpreter. Mr J O’Connell of HWL Ebsworth appeared for the first respondent.
I consider, in cases such as the present where the applicant is unrepresented, the appropriate procedure is to give the applicant an opportunity to explain orally at the hearing before me what was meant by each of the grounds of review as they appear in the application to this Court and why the applicant considers the Tribunal was wrong: see SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 (SZRUR) at [37] and [60] (Robertson J, with Allsop CJ and Mortimer J agreeing) and BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943 Hill J.
Accordingly, I first took the first applicant to the first ground of review and asked what was meant by that ground. The applicant did not want to say anything about that ground.
In relation to the second ground, I told the applicant that the second written ground did not contain any complaint about the Tribunal decision, it merely stated she would engage a lawyer and update the grounds in the application later, which did not occur, and therefore it was not a proper ground of review. I asked her if she wanted to make general submissions in support of her case and she said she did. She said that she had obtained a further IELTS score since the Tribunal decision and wanted the Court to accept that new score and grant her a visa. I told the applicant I was not permitted to do what she wanted the Court to do in these proceedings. I told her I could only review the decision of the Tribunal to see if it contained a legal error amounting to a jurisdictional error.
Mr O’Connell made brief oral submissions summarising the first respondent’s written submissions on both grounds. In relation to the matters raised by the applicant at the hearing Mr O’Connell said these matters occurred after the Tribunal decision and were not relevant to the review of the Tribunal decision. I agree with Mr O’Connell in relation to the oral submissions made by the applicant at the hearing before me, those submissions did not contain an arguable jurisdictional error that had been committed by the Tribunal.
CONSIDERATION
To succeed the applicant must show that the Tribunal’s decision contained a jurisdictional error. That is, a serious legal error that results in an administrative decision lacking any legal force: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 42; and LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [2]-[3] and [32] (LPDT).
In proceedings such as these, as I explained to the parties, the Court does not consider the merits of the decision; nor does it remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
Below the Court sets out its consideration of the grounds of judicial review in this matter. For the reasons given below, none of the grounds identify the Tribunal committed jurisdictional error.
Ground 1
In this ground, the first applicant is asserting the Tribunal made a jurisdictional error by being misdirected in its statutory task in determining the first applicant’s student visa application.
The first respondent submitted that this ground should be rejected because it is unparticularised. In view of the decision in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (DQQ17) at [9] the Federal Court observed that it will rarely be appropriate to dismiss a review ground in a migration case for lack of particularisation where, as here, the applicant is appearing on her own behalf. Thus, I will not dismiss ground 1 for that reason. Instead, I will read ground 1 as a complaint that the Tribunal did not apply the relevant law (cl 500.213) correctly, and deal with it on that basis.
Under cl 500.213 the first applicant was required to meet the criteria in cl 500.213(1) unless the first applicant fell within a class specific in cl 500.213(2). The Tribunal correctly identified 500.213(2)(d) as a possible class which the first applicant might fall into.
To meet cl 500.213(1), the first applicant was, relevantly, required to provide evidence that she had a minimum International English Language Testing System (IELTS) score in English language proficiency of 5.5, to meet the requirements under IMMI 18/015 (see clause 6(1)(a) and Item 1).
The first applicant failed to provide this evidence. The Tribunal found (at [19]) that the minimum IELTS requirement in cl 500.213(1) was not met:
19.The Tribunal is satisfied that the only evidence of an IELTS Test score is from a test undertaken on 19 January 2019 that had an overall test score of 4.0, as the test intended to be taken after the scheduled hearing on 11 November 2021. A test result for the test advised to be undertaken on 11 November 2021 has not been provided to the Tribunal. Accordingly, the applicant has not met cI.500.213(1) and IMMI 18/015 Schedule 1 – Item 1 of the required test score evidence.
Next the Tribunal identified a possible exemption from cl 200.213(1) in cl 500.213(2)(d). Clause 500.213(2)(d) specifically provided that:
(d) an applicant, who, in the 2 years before applying for a Subclass 500 (Student) visa, has successfully completed:
(i) the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia and in English; or
(ii) a substantial component of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher that was conducted in Australia and in English, while the applicant was holding a student visa; or
The Tribunal considered this class of exemption in cl 500.213(2)(d). The Tribunal found at [21] that:
The applicant provided evidence of the completion of a Certificate III in Commercial Cookery and Certification IV in Commercial Cookery on 28 March 2021, however, the completion of this course at Certificate IV was not in the 2-year period prior to applying for a Subclass 500 Student visa. In this regard, the visa application was submitted on 1 April 2020.
Finally, it dealt with the applicant’s submission at [22]. It found:
The Tribunal has considered the representative’s statement and the submission of the Representative addressing the family circumstances of the applicant and notes that the Tribunal does not have discretion in relation to the requirements of IMMI 18/015 and its application to meeting the requirements of cl.500.213.
Based on these findings the Tribunal concluded that: (a) the first applicant did not fall within a class of applicants that were exempt from cl 500.213(1); and (b) the first applicant did not meet the requirements of cl 500.213 given the lack of evidence of English proficiency, as required by IMMI 18/05. The Tribunal therefore concluded in [27] that it was not satisfied that the first applicant met cl 500.213.
In summary, the Tribunal first found the first applicant did not meet the test score requirements set out in IMMI 18/015. Then the Tribunal found that the first applicant was not exempt from the requirements of IMMI 18/015. There was nothing erroneous about deciding the matter this way under cl 500.213. The Tribunal did not misdirect itself in its statutory task under cl 500.213 in determining the applicant’s visa application. I find the Tribunal correctly applied the relevant law.
Ground 1 does not establish jurisdictional error.
Ground 2
Ground 2 merely states the applicant may obtain legal representation and provide amended grounds and particulars. This ground does contain an arguable ground of jurisdictional error and is rejected.
CONCLUSION
The applicant has not established that the Tribunal’s decision is affected by jurisdictional error.
As the applicant is unrepresented, I am required to consider whether any arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [112] and [113]; DQQ17 at [9]-[10] and BSQ17 at [27]. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.
The application is dismissed.
COSTS
The first respondent sought costs fixed in the sum of $5,600 against both applicants. I consider the amount sought by the first respondent is reasonable for this type of matter. I will make an order against the first applicant for the amount sought, however, in the exercise of my discretion under s 214(3) of the Federal Circuit and Family Court of Australia Act 2010 (Cth), I decline to make an order for costs against the second applicant, the first applicant’s son, who was minor when these proceedings were commenced. Accordingly, I will make an order for the amount sought by the first respondent against the first applicant only.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 5 September 2025
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