Badhan v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 468
•3 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Badhan v Minister for Immigration and Multicultural Affairs (No 2)[2025] FedCFamC2G 468
File number: MLG 3440 of 2019 Judgment of: JUDGE BLAKE Date of judgment: 3 April 2025 Catchwords: MIGRATION – Judicial review – application to review decision of a Registrar to summarily dismiss the Applicant’s claims – where application for review of Registrar’s reasons filed out of time – where the Grounds of Review set out in the Initiating Application have no reasonable prospect of success and are summarily dismissed – where the Applicant raised matters during the hearing that cannot be characterised as having no reasonable prospect of success – Applicant given leave to file an Amended Application and the time for filing the application for review be extended. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(2)
Migration Act 1958 (Cth) ss 357A(1), 476(2)(a)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13(a), 21.02(1), 21.02(2), 21.03(2), 21.04(1)
Migration Regulations 1994 (Cth) cl 500.212
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
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 18 March 2025 Place: Melbourne Advocate for the Applicant: In Person Solicitor for the Respondents: Mr O’Shannessy, Mills Oakley ORDERS
MLG 3440 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMRIK BADHAN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
3 APRIL 2025
THE COURT ORDERS THAT:
1.The time for filing the Application for Review filed by the Applicant on 14 March 2025 be extended.
2.Within 30 days of the date of these Orders, the Applicant be granted leave to file:
(a)an Amended Application that reflects the matters that are sufficiently arguable (see paragraphs [38]-[45] and [46]-[49]); and
(b)written submissions.
3.Within 60 days of the date of these Orders, the First Respondent be granted leave to file:
(a)an Amended Response; and
(b)written submissions.
4.The matter be listed for Final Hearing before a Judge on a date to be advised.
5.Costs be reserved.
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 BLAKE:
On 11 February 2025, a Judicial Registrar (‘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.
For the reasons that follow, I have decided to extend the time for the filing of the Application to review the Registrar’s reasons, and grant leave to the Applicant to file an Amended Application.
BACKGROUND
On 5 March 2018, the Applicant applied for a Student (subclass 500) visa (‘visa’).
On 12 April 2018, a delegate of the Minister refused to grant the Applicant the visa. The delegate found that the Applicant did not satisfy clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘Regulations’).
On 20 April 2018, the Applicant applied to the Tribunal to review the decision of the delegate. On the same day, the Tribunal wrote to the Applicant and invited him to provide material or written arguments for the Tribunal to consider as soon as possible.
On 17 July 2019, the Tribunal wrote to the Applicant. In the letter, the Tribunal informed the Applicant that he had applied for a visa on the basis of undertaking a course of study in Australia, and that it was a requirement that the Applicant be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student. The Applicant was invited to provide sufficient information to satisfy the Tribunal as to these matters. The Applicant was also directed to complete an online Request for Student Visa Information Form.
On 7 August 2019, the Applicant was invited to attend a hearing before the Tribunal on 22 August 2019. He was also invited to provide, at least seven days before the hearing, certain information including a Confirmation of Enrolment and documents that showed his past studies in Australia.
On 22 August 2019, the Applicant attended the Tribunal hearing with a representative.
On 13 September 2019, the Tribunal affirmed the decision of the delegate not to grant the Applicant a visa.
The Applicant filed his Application for Judicial Review in this Court on 9 October 2019 (‘Initiating Application’). The Initiating Application was accompanied by an affidavit of the Applicant of the same date.
The Minister filed an Amended Response on 23 January 2025, seeking orders that the Initiating Application be summarily dismissed.
On 11 February 2025, the Initiating Application was summarily dismissed by a Registrar pursuant to rule 13.13(a) of the Rules.
On 11 March 2025, the Applicant lodged the Application for Review that is now before me (‘Review Application’), however, the Review Application was not accepted for filing until 14 March 2025.
Before me, the Applicant relied on his Initiating Application, the Review Application, and a written outline of submissions prepared for the hearing and submitted to my Associates on the morning of the hearing. The Minister relied on a written outline of submissions prepared for the hearing before me. The Minister also prepared a Court Book (‘CB’).
LEGAL PRINCIPLES
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)); and
(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 a review of an exercise of power by a Registrar must proceed by way of hearing de novo (rule 21.04 (1)).
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 exercised 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
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 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. The parties agreed that it was appropriate for me to proceed to assess the merits of the case and then determine in light of that, whether the time for filing should be extended. I accepted that as an appropriate approach in the circumstances of this case.
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
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.The Tribunal and the Minister did not use a holistic approach in assessing the applicant's genuine status as a student
Particulars:
The Tribunal and the Minister did not consider the value of the course to the applicant's career goals/prospects based on his interest. Furthermore, they put little regard on how the Australian education system is more advanced as compared to the applicant's home country's education system therefore, his reasons to choose to finish his studies in Australia was completely disregarded.
2.The Tribunal and the Minister made an error in applying Clause 500.212 towards assessing whether the applicant was a genuine applicant for entry and stay as a student.
Particulars:
The Tribunal has not given due regards to the Applicant's choice of course, value of the course towards his academic needs and his career goal. The Tribunal and Minister has made an error in how the purposed course will assist the applicant to gain employment in their home country.
3.The Minister for Home Affairs erred in applying Ministerial Direction No 69 towards the assessment of GTE (Genuine Temporary Entrant) requirements for this application.
Particulars:
The Minister for Home Affairs and the Tribunal carried out the assessment with a biased focus based on a general checklist prepared to help the case officer determine the GTE requirements.
4.The Minister and the Tribunal failed to afford procedural fairness and natural justice.
Particulars:
Particulars for grounds 1,2 and 3
It is relevant to note that before me, the Applicant advanced matters that were not contemplated by the Grounds of Review set out in the Initiating Application. I propose to deal with the Grounds of Review first, before turning to the other matters raised by the Applicant.
Before turning to each of the Grounds of Review individually, I observe that in each of Grounds 1, 2 and 4 (and Ground 3 to the extent the particulars may be said to inform the Ground), the Applicant takes issue with the decision of the Tribunal and the decision of the delegate of the Minister. The Court is unable to review the decision of the delegate of the Minister: s 476(2)(a) of the Migration Act 1958 (Cth) (‘Act’). The Court may only review the decision of the Tribunal. To the extent the Applicant seeks to review the decision of the delegate, such claim has no reasonable prospect of success at an impressionistic level or otherwise.
Grounds 1 and 2
There is a degree of overlap between the particulars to Ground 1 and the particulars to Ground 2. Ground 1 asserts the failure by the Tribunal to use a ‘holistic approach’. Ground 2 asserts a misapplication by the Tribunal of clause 500.212 of the Regulations. In the particulars to both Grounds, the Applicant asserts a failure by the Tribunal to consider the value of study to his career and career goals. He also submits no weight was placed by the Tribunal on the alleged superiority of the Australian education system.
The Applicant advances essentially the same point in paragraph 2.3 and 4.2 of his written submissions. In paragraph 2.3 of his written submission, he submits that the Tribunal ‘fails to meaningfully consider key evidence’ presented by him, including that his career plans and employment prospects in India demonstrated a genuine intention to return home, his economic and family ties to India provided strong incentives to depart Australia upon completion of his studies, and the impact of external factors on his study history, such as the closure of his nursing course provider in 2017 which forced him to change courses. In paragraph 4.2 of his written submissions, he says the Tribunal failed to consider the difficulties he faced, including stress, and the impact of the closure of his education provider.
I deal with the above matters immediately below, save for the contention that the Tribunal failed to meaningfully consider the Applicant’s economic and social ties to India, which I return to later in these reasons.
The Tribunal recited the Applicant’s history of studies in Australia at paragraphs [13]-[16] as follows:
13.The Tribunal enquired why, if his year 12 studies had been different, he had formed the view that he could successfully undertake a Bachelor’s degree in Information Technology. The applicant said in response that in India he had been very interested in computers. At all events he abandoned the course in about July 2015 and changed to another course, entitled Bachelor of Information Systems in about August 2015. He did not complete this course either. When asked why, he said that he had undertaken the studies in this course for about one and a half years and had abandoned the course in March 2017. When pressed on why he had abandoned the course, he said that he had friends doing a nursing course and that he was “not in a state of mind” and he “just went and studied with them”. During the one and a half years that he studied the Bachelor of Information Systems course he said that he had passed four out of nine subjects. He added that the course was substantially the same as the previous Bachelor of Information Technology course. Indeed he said that that the courses were about “80%” the same. The Tribunal enquired why, therefore, he had undertaken substantially the same course as he had abandoned at the previous institution. He said that his friend had told him that that second course was not as hard and that there were more people that he, the applicant, would be familiar with.
14.He then enrolled in a Diploma of Nursing in about March 2017. He did not complete this course. He said that the reason he did not complete the course was that the education provider shut down in approximately May 2017. In that regard, he produced a letter from the administrator of the group of companies which operated the education institution dated 29 May 2017. That letter stated that the college had been sold and that a new provider would take over the courses. The applicant told the Tribunal that the college shut down in May 2017 and that he was “stressed” and “did not know what to do”. He was contacted by the new education provider, Tink Education in June 2017. The new provider offered the applicant a place in a similar nursing course. However the applicant did not take up this opportunity. When asked why he did not enrol in the new nursing course, he said that he was “stressed” and talked with his parents, “they were unhappy” and he “decided to go back to IT”.
15. The applicant gave evidence that he approached Holmes Institute for a place in a Bachelor of Information Technology course but there were no places available. He was offered a place by that provider in the next semester. Apparently this happened in July 2017. The Tribunal enquired what might make the applicant think that he could successfully undertake this course after failing it twice. He said that he was still interested but that his “state of mind” was poor. When the Tribunal enquired what he meant by this, he said that he had recently returned from a trip to India and that had he been in India for the preceding 2 ½ months and that he was “not focused". He did not elaborate upon this proposition.
16.The applicant did not enrol in Holmes Institute because “I did not want to waste time waiting”. He said that he had become aware of a Bachelor of Business specialising in Information Technology being offered by Kent Institute. Apparently he was told that it if he enrolled in the Bachelors of Business course he could transfer into a Bachelor of Information Technology which would be offered in a future semester. Accordingly, he enrolled in the Bachelor of Business course specialising in Information Technology in about July 2017. At the end of that semester, in November, he said that he had passed all four subjects which he had studied. In March 2018 he applied for a new visa. That was rejected in April 2018. He said at that time he was still studying at Kent Institute and the education provider said that he could continue with his studies but that the Bachelor of Information Technology was still not available at that institution. He said that he continued studying and passed three out of four subjects in the first semester of 2018. In July 2018 apparently Kent Institute commenced its Bachelor of Information Technology course and the applicant was accepted into the course. The applicant said that he was given credit for the subjects he had undertaken. He continued studying in the second semester of 2018 and passed all four subjects that he studied. He enrolled in a summer school over the summer break and passed the three subjects which he undertook. He studied four subjects in the first semester of 2019, three of which he has passed. In total, the applicant said, he has passed 20 units and only remains to complete four units. He is studying them currently. He anticipates that those subjects will be completed in November or December 2019. He added that he expects to pass these subjects.
It is plain from the paragraphs above that the Tribunal was aware of the difficulties the Applicant claimed to face. Further, at paragraph [14], the Tribunal expressly noted that the provider of the Applicant’s Diploma of Nursing Course was shut down.
At paragraph [17] of its reasons, the Tribunal noted the intention of the Applicant on return to India was to obtain employment in the information technology field either in programming or in website design. It noted the Applicant’s submission that overseas graduates obtain good employment in India.
Then at paragraphs [23] – [25], the Tribunal stated:
23.The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. The Tribunal has considered the applicant’s study history since arrival. He commenced study in 2015 in a Bachelor of Information technology degree. He abandoned this quickly. He undertook the same course at a different institution. He abandoned it also. He then enrolled in a nursing course. He did not complete it. He then enrolled in a Bachelor of Information Technology. This is not the conduct of a genuine temporary entrant.
24.The Tribunal notes that this history is inconsistent with his plans when he initially entered Australia. The current course is asserted to have relevance to vague future plans.
25.The Tribunal is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds.
It is plain from the paragraphs above that the Tribunal considered the value of the course of study to the Applicant’s future and his career prospects and was aware of his study history, including the difficulties he encountered with his nursing course. The Tribunal determined, however, not to place weight on these matters at [23]. It gave reasons for doing so. The essence of the complaint made by the Applicant is not that the Tribunal did not consider these matters, but that it did not place weight upon it. Insofar as that contention is concerned, the following is relevant. First, the Tribunal provided reasons for not placing weight on these matters and its conclusion was clearly open to it on the basis of the material before it and the Applicant’s study history. Second, the question of what weight the Tribunal should give certain evidence is a matter for it. What the Applicant is effectively seeking by these grounds is a review on the merits, something this Court is unable to do.
For these reasons, Grounds 1 and 2 of the Initiating Application and the matters set out by the Applicant at paragraph 2.3 of his written outline (save for the alleged failure to consider his economic and family ties to India) do not have reasonable prospects of success, whether assessed at an impressionistic level or otherwise.
Ground 3
Under this Ground, the Applicant asserts an error in applying Ministerial Direction No 69 (‘Direction’). The Applicant asserts that the Tribunal carried out the assessment with a ‘biased focus’ based on using Direction 69 as a ‘general checklist’. The same contention was advanced by the Applicant in paragraphs [2.6] and [2.7] of his written submissions, albeit he adds in that document that the misapplication of the Direction led to a legally unreasonable conclusion.
The allegation of any bias is neither particularised nor made out. There is no evidence of actual bias. It is not apparent that any apprehended bias on the part of the Tribunal has occurred. More is needed to demonstrate apprehended bias than that the Applicant disagrees with the Tribunal’s decision.
In respect of the remaining contention that the Tribunal used the Direction as a ‘general checklist’ by which to determine the ‘GTE requirements’, I note the following:
(a)the Tribunal set out clause 500.212 at paragraph [8] of its reasons. It clearly was aware of and had regard to the relevant regulation;
(b)at paragraph [9] of the reasons, the Tribunal noted that it was required to have regard to the Direction. The Tribunal set out various matters that are the subject of the Direction;
(c)at paragraph [10], the Tribunal demonstrated awareness of how to use the Direction. The Tribunal expressly noted that ‘the factors specified should not be used as a checklist but rather, are intended only to guide decision-makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion’; and
(d)the Tribunal went on to assess aspects of the Applicant’s circumstances against the content of the Direction.
In my view, the Ground does not have reasonable prospects of success, whether assessed at an impressionistic level or otherwise. The Tribunal demonstrated an awareness of the Direction. Moreover, the Tribunal expressly noted that the Direction is a guide for decision-makers and that it is not a checklist. The Tribunal then went on to assess the Applicant’s circumstances against the terms of the Direction. That certain matters contained in the Direction do not feature in the Tribunal’s reasons does not lead to the conclusion that the Tribunal has misapplied the Direction. Rather, if an inference is to be drawn, it is that the matters referred to in the Direction that the Tribunal did not address were not relevant to the task before the Tribunal.
Ground 4
The Applicant submits that the Tribunal failed to afford him procedural fairness or natural justice. The particulars to this Ground refer to the particulars at Grounds 1 – 3.
This Ground of Review as set out also does not enjoy reasonable prospects of success, at an impressionistic level or otherwise. Section 357A(1) of the Act makes clear that the contents of Division 5, Part 5 of the Act are taken to be an exhaustive statement of the requirements for the natural justice hearing rule in relation to the matters in which it deals. The Tribunal complied with the requirements set out. The Applicant was invited on multiple occasions to provide information or submissions. By letter dated 17 July 2019, he was informed specifically as to the matters he needed to address. The letter from the Tribunal of 7 August 2019 invited the Applicant to appear before the Tribunal and present arguments.
Other matters raised by the Applicant
In his written submissions prepared for the hearing before me, the Applicant raised other matters. Given the Applicant is unrepresented, it is appropriate to consider whether anything stated by the Applicant in that document, or orally before me, gives rise to any form of arguable case which would warrant the matter proceeding to final hearing.
Failure to meaningfully consider economic and family ties to India
At paragraph 2.3 of his written submissions, the Applicant contends, inter alia, that the Tribunal failed to meaningfully consider that ‘his economic and family ties to India provided strong incentives to depart Australia upon completing his studies’. This contention requires close examination.
Direction 69 provides guidance to decision-makers on the factors to consider when assessing the genuine temporary entrant criterion. It is not to be used as a checklist. Decision-makers using Direction 69 are to assess whether on balance, the genuine temporary entrant criterion is satisfied by considering an applicant against all factors specified in Direction 69. Within the above context, item 9(b) of Direction 69 provides as follows:
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
…
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
It is apparent from the terms of item 9(b) above that a decision maker is to assess the Applicant’s personal ties to their home country and whether ‘those circumstances’ would serve as a significant incentive to return to their home country. The words ‘those circumstances’ plainly refer to the opening words to subparagraph (b) being ‘the applicant’s personal ties to their home country’.
At paragraph [17] of its reasons, the Tribunal noted that the Applicant’s immediate family in India comprises his mother, father and sister. It also noted that while he had no assets in India, he gave evidence of his parents owning a house and some land.
At paragraph [21] of its reasons, the Tribunal then stated as follows:
21.The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from India. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. When considering the applicant’s circumstances in his home country, the Tribunal therefore finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the proposed study. However, the Tribunal accepts that the applicant may have family ties to India, given the time the applicant has spent in Australia and the intended period of future to stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.
The following is apparent from paragraph [21] of the reasons. First, the Tribunal considered the Applicant’s economic and family ties to India. Second, it made a finding that those ties ‘act as an incentive to return to his home country at the completion of the proposed study’. Third, notwithstanding that finding, the Tribunal was not satisfied there was a significant incentive for the Applicant to return to India because of time ‘spent in Australia and the intended period of future to [sic] stay in Australia ’.
The reasoning and ultimate conclusion of the Tribunal in paragraph [21] of its reasons does not sit comfortably with the terms of item 9(b) of Direction 69, nor does it appear logical. Direction 69 requires a decision maker to assess whether an applicant’s personal ties to their home country would serve as a significant incentive to return to their home country. In the present matter, the Tribunal found the Applicant’s personal ties to his home country would act as an incentive to return home at the completion of his proposed study. That conclusion ought to have been a factor that weighed in favour of the Applicant. Instead, the Tribunal gave that fact that no weight. It did not give that factor no weight because of other evidence concerning the Applicant’s circumstances in his home country. Rather, it gave that conclusion no weight because of other extraneous matters, being the time the Applicant spent in Australia, and his intended period of future stay in Australia. In doing so, the Tribunal arguably strayed outside the bounds of item 9(b) of Direction 69 and what is reasonable or logical, and deprived the Applicant of the benefit of its finding that his personal ties would act as an incentive to return to India after the completion of his proposed study.
The Applicant has pleaded this ground as a ‘failure to consider’ ground. It might be that. It might be that the Tribunal has misconstrued or misapplied Direction 69. It might be that the Tribunal has acted illogically or unreasonably. However the ground might be framed, the point raised by the Applicant is not one that can be dismissed as having no reasonable prospect of success.
Tribunal incorrectly concluded there was no evidence of the Applicant’s economic circumstances
At paragraph [30] of its reasons, the Tribunal stated as follows:
30.There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.
The statement by the Tribunal at [30] that there is ‘no evidence’ about the ‘economic circumstances’ of the Applicant is plainly incorrect and is borne out by the Tribunal’s own reasons. As I have noted, at paragraph [17], the Tribunal refers to the employment prospects in India of persons with overseas degrees in information technology. Further, at paragraph [21], the Tribunal refers expressly to the Applicant having provided evidence of ‘social, direct family and financial ties to his home country or other economic incentives to return’. The Applicant plainly provided information about his economic circumstances including financial information (see CB 26-32, 34, 36- 38, 76-78, 90-92).
It is not an answer to the statement made by the Tribunal at paragraph [30] to simply disregard what the Tribunal said there because elsewhere in its reasons, it displayed an awareness of the Applicant’s economic circumstances. Paragraph [30] forms part of the chain of reasoning of the Tribunal which leads to its ultimate conclusion that the Applicant has not been able to satisfy the requirements of clause 500.212. It is not at all clear that what is contained within paragraph [30] was immaterial to the ultimate finding by the Tribunal. The conclusion at paragraph [30] may well have been material to the ultimate conclusion reached by the Tribunal, notwithstanding the Tribunal’s earlier consideration of the circumstances of the Applicant.
In my view, this point raised by the Applicant is not one that can be characterised as having no reasonable prospect of success.
Failure to explain inconsistency in treatment of the Applicant compared to others
In his written submissions, the Applicant contends that he provided evidence that a relative with an identical study history to him was granted a visa, while he was denied one. He says that the Tribunal has failed to explain this inconsistency.
The Applicant did not address this point in his oral submissions. I have reviewed the Court Book. I am unable to see any evidence in the Court Book or in the reasons of the Tribunal that indicates that the Applicant made such a claim before the Tribunal. The contention that a relative had an ‘identical’ study history to the Applicant is difficult to believe, and I would not accept it without clear evidence. In all the circumstances referred to, the claim raised by the Applicant does not enjoy reasonable prospects of success, whether assessed at an impressionistic level or otherwise.
Tribunal placed ‘undue weight’ on certain matters
In paragraph 2.8 of his written submissions, the Applicant submits the Tribunal improperly ‘placed undue weight’ on the Applicant’s time spent in Australia. This contention squarely challenges the weight placed by the Tribunal on certain information or evidence. What weight the Tribunal placed upon information or evidence before it was a matter for it. Paragraph 2.8 of the Applicant’s outline of submissions in its present form is not one that has any reasonable prospects of success, whether assessed at an impressionistic level or otherwise.
NEXT STEPS
It follows from the conclusions expressed above that the Applicant has a sufficiently arguable case per Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [63]. He has raised matters that cannot be characterised as having no reasonable prospect of success. In circumstances where the delay in filing the Review Application was short, and where the Applicant has demonstrated a sufficiently arguable case, the time for filing the Review Application should be extended. An order will issue to that effect.
It is plain from the reasons above that the Initiating Application as filed does not enjoy reasonable prospects of success. The Applicant has, however, in oral submissions raised two claims which cannot be dismissed as having no reasonable prospect of success. In my view, and in the absence of submissions on the point, the appropriate course is to grant leave to the Applicant to file an Amended Application dealing with claims identified in these reasons. An order will issue accordingly, along with other procedural orders programming the matter for final hearing. Having not heard any submissions on costs, I will simply order that costs be reserved.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 3 April 2025
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