Atul vs Minister for Immigration and Multicultural Affairs (No 2)

[2025] FedCFamC2G 627

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Atul vs Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 627

File number:

MLG 1170 of 2023

Judgment of:

JUDGE BLAKE

Date of judgment:

6 May 2025

Catchwords:

MIGRATION –Application to review a decision of a Judicial Registrar – where Judicial Registrar summarily dismissed the Applicant’s application for judicial review – where application for judicial review does not have reasonable prospects of success – application to extend time to file the application to review the decision of the Registrar refused and application dismissed.

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(2)

Migration Act 1958 (Cth) ss 5(1), 359A, 476(2)(a)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), 21.02(1), 21.02(2), 21.03(2), 21.04(1)

Migration Regulations 1994 (Cth) cll 500.211, 500.212, 500.217

Cases cited:

AKQ21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 202

CTQ23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1066

Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473

Spencer v the Commonwealth (2010) 241 CLR 118

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Number of paragraphs:

33

Date of hearing:

2 April 2025

Place:

Melbourne

Advocate for the Applicant:

In Person

Solicitor for the Respondents:

Mr O’Shannessy, Mills Oakley

ORDERS

MLG 1170 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ATUL

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	6 MAY 2025

THE COURT ORDERS THAT:

1.Permission to extend the time for filing of the Application for Review filed 24 March 2025 (‘Application for Review’) be refused, and the Application for Review be otherwise dismissed.

2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $1,500.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review 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 BLAKE:

INTRODUCTION

1. This is an application to review a decision of a Judicial Registrar (‘Registrar’) of this Court. On 7 March 2025, the Registrar made an order summarily dismissing the Applicant’s application for judicial review under rule 13.13(a) of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘Rules’). The Registrar also ordered the Applicant to pay costs. The Applicant seeks to review the decision and orders of the Registrar. The application for review is opposed by the Minister.

2. For the reasons that follow, I have decided to dismiss the application for review.

   BACKGROUND AND TRIBUNAL DECISION

3. On 2 September 2020, the Applicant applied for a student (Subclass 500) visa (‘visa’) (Court Book (‘CB’) 21).

4. On 21 April 2022, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa on the basis that he did not meet cl 500.217 of the Migration Regulations 1994 (Cth) (‘Regulations’) and Public Interest Criterion 4020. The delegate found the Applicant had supplied a ‘bogus document’ within the meaning of section 5(1) of the Migration Act 1958 (Cth) (‘Act’).

5. On 6 May 2022, the Applicant applied to the Administrative Appeals Tribunal (‘Tribunal’) for review of the delegate’s decision (CB 175).

6. On 28 March 2023, the Applicant was invited to appear before the Tribunal at a telephone hearing scheduled on 7 June 2023 (CB 193) to give detailed evidence and present arguments. The Applicant was invited, prior to the hearing, to provide all documents he intended to rely on to support his case. The invitation specified, inter alia, the date and time of the hearing and the mode of the hearing.

7. On 18 May 2023, the Tribunal wrote to the Applicant. As contemplated by section 359A of the Act, the Applicant was invited to comment on or respond to information which the Tribunal considered would, subject to the Applicant’s comments or response, be the reason or a part of the reason for affirming the decision under review. Part of the particulars of information the Applicant was invited to comment on concerned his provision of a ‘bogus document’. The Tribunal, however, also put the following information to the Applicant:

   The particulars of the information from the Department of Education’s records are that:

   •You twice enrolled in a Master of Information Technology, due to be completed between 5 November 2018 and 3 July 2020, and 11 February 2019 and 1 November 2020. Your first enrolment was cancelled due to ‘Non-commencement of study’. Your second enrolment was cancelled due to ‘Student left provider – transferred to course at another provider’.

   •You completed a Master of Information Technology and Systems between 16 September 2019 and 16 December 2021.

   •You enrolled twice in a Certificate III in Commercial Cookery, due to be completed between 18 August 2022 and 17 August 2023, and 1 September 2023 and 17 August 2023. Your first enrolment was cancelled due to ‘Change to course in the same sector, gap created either at start or end of course OR the study period of the new CoE is shorter than the original’. Your second enrolment was cancelled due to ‘Non-payment of fees’.

   •You enrolled in a Certificate IV in Kitchen Management, due to be completed between 28 August 2023 and 26 February 2024. Your enrolment was cancelled due to ‘Non-commencement of studies’.

   •You enrolled in a Certificate IV in Commercial Cookery, due to be completed between 30 August 2023 and 10 January 2024. Your enrolment was cancelled due to ‘Change to CoE/Student details’.

   •You enrolled twice in a Diploma of Hospitality Management, due to be completed between 22 January 2024 and 15 July 2024, and 6 March 2024 and 21 August 2024. Your first enrolment was cancelled due to ‘Change to CoE/Student details’. Your second enrolment was cancelled due to ‘Non-commencement of studies’.

   •You do not currently hold a valid CoE.

   A document with screenshots of the results of this PRISMS search accompanies this letter.

   This search discloses that you have enrolled in nine different courses since commencing study in Australia but have only completed one. Eight of your enrolments have been cancelled. You have not completed a course since December 2021. You have changed the direction of your study from technology to cookery, and the level of your study from a Masters qualification to short vocational courses. You are not currently enrolled in any registered course of study in Australia.

   This information is relevant to the review because it indicates that you may not be a genuine applicant for entry and stay as a student and may be using the student visa program to prolong your stay in Australia and to circumvent the intention of the migration program. It also indicates that you may not currently be enrolled in an approved course of study.

   If we rely on this information in making our decision, we may find that you are not a genuine applicant for entry and stay as a student. Further, we may find that you are not currently enrolled in an approved course of study. We may therefore find that you do not meet cls 500.211 or 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth), which are primary criteria for the grant of a student visa.

   These may be the reasons, or part of the reasons, for the Tribunal affirming the decision not to grant you a student visa.

8. On 30 May 2023, the Applicant replied to the Tribunal’s letter of 18 May 2025. The Applicant sought to address concerns around his provision of a bogus document. He also made submissions concerning his purpose in coming to Australia, and his decision to switch from an IT course to cookery. He did not provide a Certificate of Enrolment.

9. On 7 June 2023, the Tribunal made an oral decision affirming the delegate’s decision.

10. On 10 July 2023, the Tribunal provided the Applicant with written reasons for its decision (CB 235). That decision is of short compass and is extracted in full below:

    APPLICATION FOR REVIEW

    1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 April 2022 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

    2.At the hearing on 7 June 2023 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

    STATEMENT OF DECISION AND REASONS

    3.        This is an oral decision in case number 2206635 in the matter of Atul.

    4.As noted above, this is an application for review of a decision made by the delegate on 21 April 2022 to refuse to grant the applicant a student visa pursuant to s 65 of the Act. The applicant applied for the visa on 2 September 2020. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

    5.In this case, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) because the delegate was not satisfied the applicant was a genuine student who intends genuinely to stay in Australia temporarily. The applicant appeared before the Tribunal on 7 June 2023 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Hindi language and in the English language.

    6.While the issue before the delegate was whether the applicant had provided a bogus document, the issue before the Tribunal now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa. The criteria for a Subclass 500 student visa are set out in Part 500 of Schedule 2 to the Regulations. The issue in this case is whether the applicant is enrolled in a course of study as required for the grant of a student visa.

    7.Clause 500.211 requires that at the time of this decision the applicant is enrolled in a course of study. Course of study is defined in cl 500.111 of the Regulations as a full-time registered course. Registered course is defined in reg 1.03 as ‘a course of education or training provided by an institution, body, or person that is registered pursuant to Division 3 of Part 2 of the Education Services for Overseas Students Act 2000 (Cth) to provide the course to overseas students.’

    8.On 18 May 2023 a written invitation to comment on certain adverse information was sent to the applicant. Relevantly, part of the adverse information was that the applicant was not currently enrolled. The applicant did not respond to that invitation or comment on that adverse information.

    9.At the hearing the applicant was requested to advise the Tribunal of any current enrolment he held, including start and finish dates. The applicant confirmed that he last attended a course, which he described as a cooking course, in October or November 2021.

    10.The applicant further confirmed that he is not currently enrolled in any course of study in Australia. Accordingly, there is no evidence before me that the applicant is now enrolled in any course of study.

    11.Therefore, the Tribunal finds that the criteria for the grant of a Subclass 500 student visa are not met.

    12.For these reasons the Tribunal has concluded that the decision under review should be affirmed. The Tribunal affirms the decision not to grant the applicant a student temporary class TU visa.

    DECISION

    13.      The Tribunal affirms the decision under review. 

11. On 3 July 2023, the Applicant filed an application for judicial review of the Tribunal’s decision (‘Initiating Application’). The Applicant provided an affidavit in support on the same date.

12. The Minister filed a response on 1 August 2023, seeking orders that the Initiating Application be summarily dismissed. On 7 March 2025, the Initiating Application was summarily dismissed by the Registrar pursuant to rule 13.13(a) of the Rules.

13. On 24 March 2025, the Applicant lodged the Application for Review that is now before me (‘Review Application’). The Review Application was accompanied by an affidavit in support. 

14. Before me, the Applicant relied on the Review Application and the affidavit that accompanied it, and the Initiating Application and the affidavit that accompanied it. The Minister relied on his written submissions that were filed before the hearing before the Registrar, and the Court Book he filed on 10 May 2024.

    LEGAL PRINCIPLES

15. Applications to review the exercise of powers by a Registrar are dealt with under Division 21.2 of the Rules. In particular:

    (a)an application for review of a Registrar’s decision must be made within seven days of the decision (rule 21.02 (1));

    (b)the time prescribed by rule 21.02(1) may be extended in a proceeding by the Court or a Registrar on any terms the Court or Registrar thinks fit, or with the consent of the parties to the proceeding (rule 21.02(2));

    (c)an application for review must be listed for hearing as soon as possible and, unless it is impractical to do so, within 14 days after the date of filing (rule 21.03 (2)); and

    (d)a review of an exercise of power by a Registrar must proceed by way of hearing de novo (rule 21.04 (1)).

16. The Registrar was dealing with an application for summary dismissal. It is well-settled that in considering an application for summary dismissal either under rule 13.13(a) of the Rules or an application for summary judgment under section 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), it is necessary to establish that an applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: see Spencer v the Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473. Any application for summary dismissal must be approached with caution given that it is an order made at the preliminary stage of proceedings. The onus is on the party seeking the proceeding be summarily dismissed to persuade the Court that an applicant has no reasonable prospect of success.

    EXTENSION OF TIME FOR THE FILING OF THE REVIEW APPLICATION

17. The Applicant failed to file the Review Application within seven days of the decision of the Registrar. The delay in filing was not, however, lengthy. The Minister accepted in the circumstances of this case, given the short delay in filing that whether time ought to be extended to permit the filing of the Application would turn on the Court’s assessment of the merits of the Applicant’s case. I have therefore proceeded to consider the merits of the case, and regard the other factors (length of delay, reason for delay and prejudice to the Minister) as matters that weigh in favour of the Applicant.

18. In considering the merits of the Review Application for the purposes of determining whether to grant an extension of time, it is necessary for the Court to consider afresh whether or not there is a basis for summary dismissal of the Initiating Application at a reasonably impressionistic level: CTQ23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1066 at [35] (Judge Lucev); AKQ21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 202 at [29]-[30] (Judge Symons).

    THE GROUNDS OF REVIEW

19. In the Review Application, the Applicant seeks to review all of the orders made by the Registrar. The Grounds for Review in the Initiating Application are as follows:

    1.I Atul, am the primary applicant of A Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

    2.On September 2, 2020, I submitted an application for a visa so I could study in Australia. But, on April 21, 2022, the delegate declined to provide me with a visa because, in their opinion, I did not meet the criteria for genuine temporary entrants with respect to student visas.

    3.On January 29, 2021, the Tribunal sent me a letter urging me to respond in writing with details regarding my financial documents, my enrollment in a recognized course of study, and whether or not I am an actual applicant for entry and permission to study. In my response, I sent all the requested information in letters dated 26 February 2021 again on 13 October 2021 and finally provided a letter purportedly from the Central Bank of India dated 15 February 2023.

    4.The tribunal claims that I submitted a phony document and/or false or deceptive information in a material particular to support my visa application. It is pertinent to the review because it shows that I am not meeting Public Interest Criteria 4020 in Sch 4 of the Migration Regulations of 1994 (Cth) (the Regulations), which is a key need for the granting of a student visa and is outlined in cl 500.217 of Sch 2 of the Regulations.

    5.On June 7, 2023, I appeared before the Tribunal for a hearing after submitting a request for review, and the hearing was conducted with the help of an interpreter who could speak both Hindi and English.

    6.I presented the Tribunal with all the necessary information and assured them that I am a legitimate applicant for a subclass-500. I addressed the situation in my letter in response.

    7.At the hearing, I told the Tribunal that I started and finished my Master of Information Technology and Systems courses between September 16, 2019, and December 16, 2021 and that if I am not a genuine applicant, I won't be able to finish my master's degree.

    8.I enrolled in a Certificate III in Commercial Cookery and a Certificate IV in Kitchen Management but was not able to continue it and it got cancelled due to PIC 4020 Bann as I did not satisfied the PIC 4020(1) of PIC 4020 which completely shaken me I was broken from inside both mentally and emotionally.

    9.The tribunal then alters the review's course to reflect the fact that I am ineligible for a review because I am not currently enrolled in any study courses throughout my review. I told the tribunal that PIC 4020 Bann had left me with very few choices and that my predicament really upset me.

    10.The Tribunal informed me that having had regards to my circumstances, my immigration history and all other relevant matters, the Tribunal is not satisfied that I am a genuine applicant for entry and stay as a student temporarily because I am not currently enrolled in Grounds of Application any course as required by clause 500.212. Accordingly, I do not meet clause 500.212. Hence, the criteria for the grant of a Subclass 500 (Student) visa are not by me and as I did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Therefore, the decision under review must be affirmed.

    11.The Tribunal affirmed the decision not to grant me a Student (Temporary) (Class TU) visa.

    12.The grounds of the application for my case to be re‐considered by Federal Circuit Court as I was not provided enough time to provide more evidence.

    13.The department failed to consider the other relevant matter in support of our case and previous immigration history and compliance with the visa condition was not considered.

    14.I believe that I was not provided a fair opportunity to provide the verbal evidences to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs have stated that I do not meet the criteria for Student (Temporary) (Class TU) visa. However, I did mention these points in my Hearing statement and I also provided all the relevant and necessary evidence in the hearing.

    15.Tribunal misconstrued condition 500.212 that the requirements set by the subclass 500 visa were not met by me. The clauses were wrongly assessed. My genuine intentions to apply a Student (Temporary) (Class TU) visa were denied by the tribunal.

    16.My application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again.

    17.Substantial justice was not provided and that's the reason I want to apply in Federal Circuit Court of Australia.

1. I invited the Applicant to make oral submissions in support of the Grounds of Review. The Applicant, among other things, admitted before me that he was not enrolled in any course of study when his matter was heard by the Tribunal. He sought to explain how he had reached this point and what his plans had been.

2. It is a requirement for the grant of the visa that an applicant for the visa is enrolled in a course of study. Regulation 500.211 provided as follows:

   One of the following applies:

   (a)       the applicant is enrolled in a course of study;

   (b)if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

   (c)if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

   (d)if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

3. The Applicant’s admission before me that he was not enrolled in a course of study at the time of the hearing before the Tribunal comes as no surprise, and confirms what the Tribunal itself set out at paragraph [9] of its reasons.

4. In circumstances where the Applicant was not enrolled in a course of study in accordance with regulation 500.211, the Applicant failed to satisfy the requirements for the grant of the visa. In those circumstances, the only course available to the Tribunal was to affirm the decision not to grant the Applicant a visa. The Applicant did not request additional time in order to enrol in a course or obtain a confirmation of enrolment, nor did he provide evidence that an enrolment was imminent. The evidence was that the Applicant had last been enrolled in a course of study in November 2021, about 19 months before the decision of the Tribunal was made. 

5. When these matters are considered, it is plain that the Applicant’s Initiating Application has no reasonable prospect of success.

6. Although it is not strictly necessary to do so, I turn to the Grounds of Review. The Grounds of Review are somewhat in narrative form and not every ground of review raises a complaint.  The Applicant did not meaningfully speak to any of the Grounds of Review. Further, not every ground of review is particularised.   

7. Grounds 1–8 and 10–11 provide a narrative history of what has occurred. They do not give rise to any complaint against the Tribunal, nor identify any error committed by the Tribunal.

8. Ground 9, while also in narrative form, arguably raises a complaint that the Tribunal took a different course from the delegate by embarking upon an enquiry as to whether the Applicant was currently enrolled in a course of study. The Tribunal did decide the matter on a different basis to that of the delegate. The Applicant was, however, well aware that this issue was going to be raised. He cannot claim he was taken by surprise and not on notice of the issue.

9. In Grounds 12 and 14, the Applicant complains that he was not provided with enough time to submit evidence and not provided a fair opportunity to provide oral evidence to the Tribunal. As to Ground 12, the Applicant was notified on 18 May 2023 that his apparent non-enrolment in a course of study was an issue that could result in a refusal to grant him a visa. The hearing before the Tribunal occurred on 7 June 2023. He therefore had approximately three weeks to submit evidence. He did in fact reply to the letter of 18 May 2023 on 31 May 2023, so he had the opportunity to make submissions and evidence which he availed himself of. There is no indication that he asked for more time to submit further evidence. As to Ground 14, it is apparent from the reasons of the Tribunal that the Tribunal heard from the Applicant. The Tribunal hearing record discloses that the hearing went for about 40 minutes. There is no indication in the material that the Applicant asked to submit further evidence following the hearing.

10. Ground 13 raises a complaint against the Department. The Court is unable to review the decision of the delegate of the Minister: s 476(2)(a) of the Act. The Court may only review the decision of the Tribunal.

11. In Ground 15, the Applicant contends that the Tribunal misconstrued clause 500.212 of the Regulations. Clause 500.212 sets out the criteria for whether an applicant is ‘a genuine applicant for entry and stay as a student’ in Australia. The Tribunal did not assess whether the Applicant satisfied clause 500.212. It had no need to do that because it was satisfied that the Applicant was not enrolled in a course of study as required by clause 500.211 of the Regulations.

12. Grounds 16 and 17 are not particularised. The Applicant did not speak to them. That is a sufficient basis upon which grounds such as these may be dismissed: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

13. When the above matters are considered, the Applicant does not have any reasonable prospect of successfully prosecuting the Initiating Application. The Applicant’s case is not sufficiently arguable judged at an impressionistic level. When that matter is weighed alongside other matters the Court is required to consider, the Court finds that the time for filing the Review Application ought not be extended, and that the Review Application ought to be dismissed. Orders will issue to that effect.

    COSTS

14. The Applicant has been entirely unsuccessful in his application. The Minister seeks costs of $1,500. In the circumstances, I will order costs as sought by the Minister.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       6 May 2025