Ahsan v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 836
•5 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ahsan v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 836
File number(s): MLG 2054 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 5 June 2025 Catchwords: MIGRATION – application for review of a Registrar’s decision – hearing de novo of first respondent’s application for summary dismissal – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 500) visa – where Registrar summarily dismissed the applicant’s application for judicial review – where grounds unparticularised – application dismissed. Legislation: Migration Act 1958 (Cth) Pt 5 Div 5, ss 359A, 360, 360A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.04
Migration Regulations 1994 (Cth) sch 2 cll 500.211, sch 4 cll 4020, 4021
Cases cited: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641
BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Thummala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 828
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 12 May 2025 Place: Melbourne Applicant: In person, appearing on his own behalf Solicitor for the Applicant: Huk Legal Services Solicitor for the First Respondent: Ms Petrovski of Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
MLG 2054 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WAHEB AHSAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
5 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
2.The name of the Second Respondent be amended to “Administrative Review Tribunal”.
3.The Application for Review of a Registrar’s decision filed 14 April 2025 be dismissed.
4.The Applicant pay the First Respondent’s costs fixed in the amount of $1000.
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
JUDGE J YOUNG
INTRODUCTION
Before the Court is an Application for Review of a Registrar’s decision filed on 14 April 2025 (Review Application)
The application before the Registrar was an Application by the first respondent (Minister) for summary dismissal of the applicant’s application for judicial review filed on 22 November 2023 (Substantive Application).
On 4 April 2025, the Registrar made orders for the Substantive Application to be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) and that the applicant pay the Minister’s costs fixed in the sum of $4,189.38.
Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, the Minister’s Application for summary dismissal (Summary Dismissal Application) is to be considered afresh.
BACKGROUND
The applicant is a citizen of Pakistan.
On 8 March 2021, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (Visa). In support of his Visa application, the applicant provided an Account Maintenance Certificate (Certificate) from Invest Capital Investment Bank Limited (ICIBL) in his father’s name. In his Visa application, the applicant nominated Future Care Consultant (an education consultant) to receive correspondence on behalf of the applicant and provided the email address [email protected] (consultant’s email address).
On 31 March 2022, the Department sent a letter to the applicant by way of email to the consultant’s email address inviting the applicant to comment on adverse information received by the Department in relation to the Visa application (Invitation to Comment). The Department noted that it had serious concerns that the Certificate the applicant had provided in support of his Visa application was a bogus document and that consequently, the applicant might not meet the Public Interest Criterion (PIC) 4020.
On 22 April 2022, the applicant provided a written response to the Department dated 21 April 2022. In his response, the applicant submitted that ICIBL does exist and provided an email address and website to verify the same. The applicant attached a new Account Maintenance Certificate and a copy of his current academic transcript. The applicant further submitted that he only had three units left of his course which he was expected to complete around September and that he wanted to complete his studies and return to Pakistan for a brighter future.
On 9 September 2022, the applicant appointed a registered migration agent.
On 3 October 2022, the applicant’s migration agent provided further supporting material to the Department, including a letter of completion from Macleay College, statement of results from Macleay College and a further written statement of the applicant in response to the Invitation to Comment.
On 4 March 2023, a delegate of the Minister (Delegate) refused to grant the Visa on the basis that the applicant did not satisfy PIC 4020 contained in cl 4020 of sch 4 of the Migration Regulations 1994 (Cth) (Regulations) and thereby did not meet cl 500.217 of sch 2 of the Regulations. Clause 4020(1) required that there be no evidence before the Minister that the applicant had provided the Minister, or a relevant assessing authority, a bogus document or information which was false or misleading in relation to the application for the Visa. It was a requirement of cl 500.217 that the applicant satisfied cl 4020 of sch 4 of the Regulations.
On 14 March 2023, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the Delegate’s decision. Attached to the application for review was a written letter of the applicant stating that ICIBL was a financial institution and the applicant provided its website address.
On 16 March 2023, the Tribunal emailed the applicant confirming receipt of his application for review. In that correspondence, the applicant was advised that if he wished to provide material or written arguments for the Tribunal to consider, he soon do so as soon as possible.
On 17 October 2023, the Tribunal invited the applicant to attend a hearing scheduled for 14 November 2023 by telephone.
On 20 October 2023, the Tribunal accessed the applicant’s Provider Registration International Student Management System records, which suggested that the applicant was not enrolled in a course of study as he had completed his course.
On 14 November 2023, the applicant attended the hearing before the Tribunal and gave evidence. At the hearing, the Tribunal delivered an oral decision affirming the decision of the Delegate to refuse to grant the applicant the Visa, with a direction that the applicant met cl 4020(1) but did not meet cl 500.211.
On 14 November 2023, the Tribunal sent a copy of the decision record to the applicant.
Tribunal decision
The Tribunal issued its written statement of decision and reasons on 19 December 2023 (Tribunal Decision).
At paragraphs [3] – [7] of the Tribunal Decision, the Tribunal summarised the Delegate’s decision and noted the information and submissions that the applicant had provided in relation to the Visa application.
At paragraphs [9] – [10] of the Tribunal Decision, the Tribunal identified that one of the issues before it was whether the applicant satisfied the requirements of cl 4021. The Tribunal noted that it had searched information about ICIBL online and that by looking at the information that was available in the public domain, it was satisfied that the phone number and the address of the bank branch as provided on the Certificate were correct. It was therefore satisfied that the applicant met cl 4020(1).
At paragraph [11] of the Tribunal Decision, the Tribunal noted the applicant’s oral evidence that he had completed his course almost 12 months prior, and that he had not enrolled in any other course since that time, nor had he returned to his home country, which he said he intended to do in his written response to the Department on 22 April 2022. The Tribunal further noted that it discussed with the applicant the requirement to be enrolled in a course of study at the time of the Tribunal’s decision to meet cl 500.211.
At paragraphs [13] – [14] of the Tribunal Decision, the Tribunal noted the applicant’s explanation for not having been enrolled in a course of study for 12 months, being that he wanted to enrol in a master’s degree but was not going to do so until he had the outcome of the review. The Tribunal found that this was not a reasonable path to have planned for, and that on the evidence before it, the applicant did not satisfy cl 500.211 of sch 2 of the Regulations.
Accordingly, the Tribunal affirmed the Delegate’s decision not to grant the applicant the Visa.
PROCEEDINGS IN THIS COURT
On 22 November 2023, the applicant filed the Substantive Application. In the Substantive Application, the applicant sought orders quashing the Tribunal Decision and an order directing the Tribunal to determine the applicant’s application according to law.
In the Response filed 5 July 2024, the Minister sought orders that the Substantive Application be summarily dismissed pursuant to r 13.13 of the Rules.
Summary dismissal hearing on 4 April 2025
The Summary Dismissal Application was heard by the Registrar on 4 April 2025. The applicant was legally represented at the hearing before the Registrar by Mr Warraich of Huk Legal Services. On the day of the hearing, the Registrar summarily dismissed the Substantive Application and provided ex-tempore reasons (Registrar’s Decision).
Application for Review of a Registrar’s decision filed on 14 April 2025
The Review Application was lodged on 10 April 2025 and accepted for filing on 14 April 2025.
The Minister relies upon its written submissions filed 9 May 2025 with respect to the Review Application.
The applicant appeared for himself at the Review Application but confirmed that Huk Legal Services continued to represent him.
The applicant relied on the following documents:
(1)affidavit of the applicant filed 22 November 2023 annexing a copy of the Tribunal’s outcome of review; and
(2)affidavit of the applicant filed 14 April 2025.
SUMMARY DISMISSAL PRINCIPLES
Rule 13.13(a) provides that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
…
(Emphasis added).
In considering an application for summary dismissal under r 13.13(a) of the Rules, it is necessary to establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 (Spencer); Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przybylowski). It is not necessary for the Court to be satisfied that the applicant is bound to fail. In Spencer, the majority in the High Court said at [59]:
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power…
(Emphasis added.)
The discretion to summarily dismiss an Application must be exercised with caution given it is an order made at a preliminary stage in proceedings in the absence of a full and complete factual matrix and argument: Spencer; Przybylowski. However, what is required is “a critical examination of the available material to determine whether there is a real question of law or fact which should be decided at trial”: Spencer; Przybylowski; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46]. The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success.
GROUNDS OF REVIEW
In the Substantive Application, the applicant raises the following grounds (without amendment):
1.The Administrative Appeals Tribunal made a jurisdictional error whilst making decision on application.
2.The Administrative Appeals Tribunal failed to accord procedural fairness and thereby erred in the exercise of its jurisdiction to review the decision of the delegate.
3.The Administrative Appeals Tribunal failed to consider all circumstances of the case and to observe the principles of natural justice.
CONSIDERATAION
Ground 1
By Ground 1 the applicant makes a general allegation that the Tribunal made a jurisdictional error.
Ground 1 is entirely unparticularised and at the hearing the applicant was unable to further articulate it. This is a sufficient basis to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (WZAVW) at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 (BDE16) at [20], [24].
Accordingly, Ground 1 has no reasonable prospect of success.
Grounds 2 and 3
By Grounds 2 and 3 the applicant submits that the Tribunal failed to afford the applicant procedural fairness.
Grounds 2 and 3 are also entirely unparticularised and at the hearing, the applicant was unable to further articulate these grounds. This alone is a sufficient basis to dismiss them: WZAVW at [35]; BDE16 at [20], [24].
Further, the Tribunal complied with its procedural fairness obligations under Part 5 Division 5 of the Migration Act 1958 (Cth) (Act).
Firstly, the applicant was invited to a hearing in compliance with ss 360 and 360A of the Act, which he attended and at which he gave evidence and made submissions. The Tribunal identified that the determinative issues were whether the applicant satisfied PIC 4020(1) and whether the applicant was enrolled in a course of study such as to satisfy cl 500.211. The applicant was on notice of the first issue as a result of the Delegate’s decision and, as submitted by the Minister, of the second from the Tribunal’s questioning and discussion regarding enrolment at the hearing.
Secondly, there was no “information” that the Tribunal was required to put to the applicant pursuant to s 359A of the Act.
As to the contention in Ground 3 that the Tribunal failed to consider the circumstances of the case, at the hearing the applicant submitted that the Tribunal failed to consider that he had tried, unsuccessfully, to enrol in a master’s program. Clause 500.211 requires that the applicant be enrolled in a course of study (as defined by cl 500.211) at the time of the Tribunal’s decision. The applicant’s evidence before the Tribunal was that he was not at that time, and had not for a period of 12 months, been enrolled in a course of study. At the hearing before this Court, the applicant confirmed that this had been his evidence before the Tribunal and that at that time he was not, and had not been, enrolled in a course of study for 12 months. The fact that the applicant intended to enrol in a master’s degree and had not been able to or that he was now enrolled in a course of study are not matters of relevance. The requirement of cl 500.211(a) that an applicant be enrolled in an approved course of study is mandatory and, as such, the Tribunal had no discretion to waive that requirement or to take into account any circumstances which may have resulted in the applicant not being enrolled: Thummala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 828 at [57]. The Tribunal correctly determined that the applicant did not meet the requirements of cl 500.211(a) and no other considerations were relevant to that determination. Further, the Tribunal decision provides that the applicant’s explanation for not enrolling in a master’s degree at that time was that he was waiting the outcome of the Tribunal’s review of the Delegate’s decision, in respect of which the Tribunal said at [13] - [14]:
…and I have considered your response that that is because you are waiting for the outcome of the review of the Tribunal.
However, having now passed 12 months since you completed your last course and have not enrolled in a further course, I am not satisfied that that timeframe is reasonable. Certainly, you indicated that you were not going to enrol in another course of study – and now you want to undertake a Masters degree - until you had an outcome of this review, and that is not a reasonable path to have planned for…
Accordingly, no error of the type identified in Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93 arises in the current circumstances.
Accordingly, Ground 2 and 3 have no reasonable prospect of success.
Ulterior purpose
Finally, the Minister submitted that the Court ought infer that the applicant applied for the Visa for an ulterior purpose as he applied for the Visa on the basis of completing his course in December 2022, which he did. In light of my findings above, it is not necessary that I determine this issue.
DISPOSITION
For the reasons set out above, I find that the applicant’s Substantive Application has no reasonable prospects of success.
Accordingly, the Application for Review of the Registrar’s Decision must be dismissed.
The Minister seeks an order that the Applicant pay their costs in the amount of $1,000. I shall order accordingly.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 5 June 2025
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