Dhillon v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1664
•10 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhillon v Minister for Immigration and Citizenship [2025] FedCFamC2G 1664
File number(s): MLG 2386 of 2021 Judgment of: JUDGE CORBETT Date of judgment: 10 October 2025 Catchwords: MIGRATION - Skilled Graduate (Subclass 485) visa - Application to review orders of a Registrar - Practice and Procedure - Extension of time – Change of Rules - Extension of time granted – Summary dismissal – Whether application for judicial review has reasonable prospects of success – Whether applicant denied procedural fairness- No denial of procedural fairness – No jurisdictional error identified – Application for review dismissed - Orders of Registrar affirmed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 256, 256(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), 21.02(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) Division 3.2 rr 1.15, 3.06(1), 3.08(1) and 23.08(1)(a), Sch 2, Pt 3, Div 1
Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) reg 1.15F, cl 485.221 of Sch 2
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2024) 418 ALR 152; [2024] HCA 12 at [3]
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [6]–[7]
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [22], [24]
Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [10]
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of last submission/s: 18 September 2025 Date of hearing: 18 September 2025 Place: Melbourne Solicitor for the Applicant: Self-represented via video link Solicitor for the Respondents: Mr J Mangos, Sparke Helmore Lawyers ORDERS
MLG 2386 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARJAP SINGH DHILLON
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
10 OCTOBER 2025
THE COURT ORDERS THAT:
1.The time within which to file an application for review of the exercise of power by a Registrar of the Court is extended to 1 September 2025;
2.The application for review of the Registrar’s exercise of power filed 1 September 2025 is dismissed;
3.The order of the Registrar made 14 August 2025 summarily dismissing the application for judicial review is affirmed;
4.The order for costs made by the Registrar on 14 August 2025 is also affirmed; and
5.The applicant pay the first respondent’s costs and disbursements, of and incidental to the application for review, fixed in the sum of $1,500.00.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE CORBETT
On 14 August 2025, a Registrar of this Court made orders summarily dismissing, pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules), the applicant’s application for judicial review filed 21 September 2021. The Registrar found that the applicant’s claim for judicial review had no reasonable prospects of successful prosecution.
The applicant now seeks to review the exercise of power by the Registrar pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) (application for review).
The applicant seeks judicial review of a decision of the second respondent (Tribunal) made 29 June 2021 (Decision). In the Decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Skilled Temporary Graduate (Subclass 485) visa (visa).
Reference in these reasons to ‘CB’ pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit ‘R1’.
EXTENSION OF TIME
On 1 September 2025, the applicant filed the application to review pursuant to s 256(1) of the FCFCOA Act and r 21.02 of the 2021 Rules. The application for review sought that the Registrar’s orders made 14 August 2025 be set aside and the application for judicial review be reinstated and listed for further hearing.
Under the 2021 Rules, the time within which to commence an application for review is within seven days from the date of the exercise of the power (r 21.02 of the 2021 Rules). Therefore, the application for review was out of time. The Court had the discretion to extend time on any terms that it sees fit (r 21.02 (2) of the 2021 Rules).
On 1 September 2025, the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 Rules) came into operation and replaced the 2021 Rules. Division 3.2 of the 2025 Rules now applies to a review of a Registrar’s exercise of power. Importantly, the time within which to bring an application for review has changed from seven days to 21 days (r 3.06(1) of the 2025 Rules). The Court may extend any time fixed by the 2025 Rules and may do so, even if the time has passed (r 1.15 of the 2025 Rules).
The hearing of the application for review was listed for hearing in person at Melbourne on 18 September 2025.
The applicant appeared self-represented by video link, assisted by an interpreter fluent in the Punjabi and English languages. The applicant’s command of English was very good and the assistance of the interpreter was seldom required.
Mr Mangos, solicitor, appeared for the Minister.
Because the application for review was out of time under the 2021 Rules, the applicant was asked to explain why the application for review was not filed with the Court until 1 September 2025.
The applicant submitted that he was unaware that the Rules required an application to be filed within seven days of the Registrar’s decision. The applicant said that he filed the application by himself, without legal representation. He did not understand the procedures of the Court or the time limits in the Rules. He believed that the time to appeal was 21 days from the decision and thought his application was within time.
Mr Mangos for the Minister submitted that because the decision of the Registrar was made before the 2025 Rules came into force, the 2021 Rules still applied and an adequate explanation for delay was required. However, there was no prejudice to the Minister if an extension was granted.
Because of the change in the Court Rules, the candid explanation for misunderstanding the 2021 Rules, the absence of prejudice to the Minister and in the interests of the efficient and just disposition of the proceedings, the Court granted an extension of time to commence the application for review. The time within which to bring an application for review was extended to 1 September 2025.
Therefore, the hearing proceeded as a hearing de novo, with the Minister bearing the burden of satisfaction that the application for judicial review should be summarily dismissed because the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of a proceeding (rr 3.08(1) and 23.08(1)(a) of the 2025 Rules).
Mr Mangos relied on an outline of written submissions filed with the Court on 24 July 2025 and a further outline of written submissions dated 12 September 2025. The following background can be established from the submissions and Court Book.
BACKGROUND
The applicant is a citizen of India (CB 2). On 14 February 2009, he arrived in Australia on a Student visa (CB 17).
From 2009 to 1 June 2012, the applicant completed a Diploma of Laboratory Technology at Swinburne University (CB 5, 25 - 32). In 2013, the applicant studied 4 units of a Bachelor of Science (Biomedical Science) (CB 27). Three semesters in, his best friend/housemate went missing under mysterious circumstances, which later resulted in a homicide investigation. The applicant ceased study because he could not ‘focus on anything’ and is life became traumatic (CB 27 and 71). From March 2016 to March 2017, the applicant completed a Diploma of Marketing at the Australian Institute of Technical Training (AITT) (CB 5, 33-5). In 2017, the applicant enrolled in an Advanced Diploma of Marketing and Communications at AITT but then his older brother had a life-threatening work accident that affected his family’s ability to support him financially and his study path was once more interrupted (CB 71).
On 13 November 2018, the applicant applied for the visa. In the application for the visa, the applicant nominated as his proposed occupation, Primary Health Organisation Manager (CB 6). This was a skilled occupation that was related to the applicant’s course of study in biomedical sciences. The applicant claimed that his aim was to one day open his own laboratory business (CB 71).
On 6 February 2019, a delegate of the first respondent refused to grant the applicant the visa because the application did not satisfy the mandatory criteria required by cl 485.221 of the Regulations. This is because the applicant had not completed a course of study in the six months prior to making the visa application. The completion letter for the Diploma of Marketing was dated 26 March 2017, and no further evidence of relevant study from an approved provider was provided to the Minister to establish compliance with the Migration Regulations 1994 (Cth) (Regulations) (CB 43-7).
On 8 February 2019, the applicant applied to the Tribunal to review the delegate’s decision (CB 48-9).
In 2020, after the application for the visa, the applicant enrolled for a Certificate III in Painting and Decorating (CB 71). However, this was not a relevant course of study for the purpose of the Regulations or the application for the visa. It was not a course of study related to the nominated occupation.
On 20 July 2021, the Tribunal invited the applicant to attend a hearing by telephone listed on 4 August 2021 (CB 59-61).
On 4 August 2021, the applicant attended the hearing self-represented to give evidence and provided written submissions to the Tribunal (CB 73).
On 19 August 2021, the Tribunal affirmed in writing the Decision of the delegate not to grant the applicant the visa (CB 78-81).
On 20 August 2021, the applicant received a notification of Decision (CB 77).
On 21 September 2021, the applicant filed an application for judicial review with this Court.
TRIBUNAL’S DECISION
In the Decision, the Tribunal identified that the issue to be determined was whether the applicant satisfied the criteria for the visa in cl 485.221 of Sch 2 of the Regulations. In particular, did the applicant meet the ‘Australian study requirement’ (as defined in r 1.15F of the Regulations) within the six months immediately before making the application for the visa. Clause 485.221 of the Regulations also requires that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (CB 79 [6]).
The applicant did not provide any evidence that he completed any course of study after completing a Diploma of Marketing on 26 March 2017 (CB 79 [9]). The applicant acknowledged that he had not completed any course or courses that may meet the ‘Australian study requirement’ within six months before applying for the visa. Instead, the applicant asked that due to his personal circumstances, the Tribunal exercise its discretion to give him an opportunity to make a ‘fresh application’ (CB 80 [10]-[11]).
The Tribunal explained at the hearing held in August 2021 that it did not have the discretion to permit the applicant to make a fresh visa application but rather, was bound to make findings regarding the current application and specifically whether the applicant had fulfilled the criteria required by the Regulations (CB 80 [12]).
The Tribunal found that the applicant did not satisfy the requirements of cl 485.221 of the Regulations and affirmed the decision of the delegate (CB 79 [13], [15]).
GROUNDS OF REVIEW
In the application for judicial review filed 21 September 2021, the applicant identified 11 grounds of review as follows (verbatim):
1. THE FIRST RESPONDENT DID NOT CONSIDER FURTHER STUDIES UNDERTAKEN.
2. THE FIRST RESPONDENT HAS ACCESS TO CRICOS TO LOOK INTO STUDENT'S EDUCATION RECORDS AND THE FIRST RESPONDENT DID NOT LOOK INTO FURTHER STUDIES.
3. 485 GRADUATE WORK STREAM WAS APPLIED IN RELATION TO THE EDUCATION OF DIPLOMA OF MARKETING.
4. THE FIRST RESPONDENT FAILED TO NOTICE THE WORK EXPERIENCE PROVIDED IN ORDER TO JUSTIFY THE 485 STREAM.
5. THE FIRST RESPONDENT FAILED TO LOOK INTO FURTHER STUDIES UNDERTAKEN AND ENROLLED INTO IN AUSTRAILA.
6. THE SECOND RESPONDENT FAILED TO GIVE AN OPPORTUNITY OF A FAIR TRIAL BY ALLOWING A FACE TO FACE HEARING BUT DUE TO THE PANDEMIC I HAD TO ATTEND HEARING BY TELEPHONE.
7. THE SECOND REPONDENT CANNOT GIVE FAIR OPPORTUNITY FOR A HEARING BY HAVING IT OVER THE PHONE THAN AT A TRIBUNAL IN A FORMAL ATMOSPHERE WHERE EVIDENCE AND ORAL EVIDENCE IS PROVIDED IN PERSON.
8. IN PARAGRAPH 4 OF THE SECOND RESPONDENT'S DECISION IT STATES THE TRIBUNAL HARD REGARD TO THE TRIBUNAL'S OBJECTIVE OF PROVIDING A MECHANISM OF REVIEW THAT IS FAIR, JUST, ECONOMICAL AND QUICK, AND THE DELAY TO THE MATTER IF THE HEARING WAS NOT TO BE CONDUCTED BY TELEPHONE', BUT IN MY CASE THE DELAY WOULD HAVE BEEN REASONABLE BECAUSE THE COVID-19 PANDEMIC CAUSED THE DELAY AND IT IS ONLY FAIR IN CIRCUMSTANCES SUCH AS MINE TO HAVE THE DISCISSION FACE TO FACE.
9. THE JURISDICTIONAL ERROR IS THE UNFAIR HEARING OPPORUNITY THAT I HAD TO SUFFER AT THE HANDS OF THE PANDEMIC.
10. THE SECOND RESPONDENT FAILED TO USE THE POWER TO LOOK INTO MY CASE AND MAKE A FAIR DECISION CONSIDERING THE CURRENT STUDIES COMPLETED AND WORK EXPERIENCES UP UNTIL THE HEARING DATE.
11. IN THE DECISION RECORD GIVEN BY THE FIRST RESPONDENT, THE FIRST RESPONDENT DID NOT PROVIDE ADEQUATE INFORMATION IN THE DECISION TAKING INTO ACCOUNT ALL EVIDENCE I PROVIDED ALONG WITH MY EDUCATION AND EXPERIENCE TO DATE IN ORDER TO EVALUATE MY ELIGIBILTY FOR THE VISA APPLICATION.
The application for judicial review was supported by an affidavit affirmed by the applicant on 21 September 2021. The affidavit was in substantially the same terms as the grounds of review.
MINISTER’S SUBMISSIONS
The solicitor for the Minister submitted that the application should be summarily dismissed because the application for judicial review has no reasonable prospects of success. It was submitted that the applicant had completed a Diploma course in March 2017 and had not undertaken study in the six months prior to making the application for the visa in November 2018. Therefore, the applicant did not meet the requirements of the Regulations for this category of visa. There was no jurisdictional error identified in the grounds of review and none were evident from the Decision.
Further, it would be futile to remit this matter to the Tribunal in circumstances where there is no evidence that the applicant would be able to satisfy the requirements of cl 485.211 and the Tribunal would be bound to affirm the delegate’s decision again.
The solicitor for the Minister addressed each ground of review in the application for judicial review. He addressed grounds one, two, four, five and eleven together. It was submitted that these grounds seek review of the delegate’s decision which the Court has no jurisdiction to review, being a primary decision (s 476 of the Act).
Ground three was a statement of fact and did not allege any jurisdictional error on behalf of the Tribunal.
Grounds six to nine alleged that the Tribunal denied the applicant procedural fairness in conducting the hearing by telephone. It was submitted that the Tribunal’s decision to hold the hearing by telephone due to the COVID-19 pandemic was plainly reasonable in circumstances where the applicant did not object to attending a hearing by telephone, the applicant has not provided any evidence that it impeded his ability to give evidence and present arguments, or disadvantaged him in any way. Furthermore, demeanour did not play any part in the decision due to the nature of the key issue.
Ground ten alleged that the Tribunal erred by failing to consider the applicant’s studies since the visa application. It was submitted that it was not relevant for the Tribunal to consider any course after the visa application was made as the issue is confined to considering the six months prior, and this seeks impermissible merits review of the Tribunal’s Decision.
Therefore, the applicant had no reasonable prospect of successfully prosecuting the proceeding and the application for review should be summarily dismissed under r 23.08 of the 2025 Rules.
APPLICANT’S SUBMISSIONS
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Decision. It was also explained that this Court cannot review the merits of the Decision or grant the visa that is sought. Rather, the role of the Court is restricted to determining if the Tribunal made a material jurisdictional error in arriving at the decision it arrived at (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272).
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the grounds of review and to inform the Court of the basis on which the Tribunal made any error.
The applicant submitted that the reason he did not submit an application within six months of his last course of study was because another application for a student visa was remitted by the Tribunal to the Department in 2017, due to an error by the Department in not sending correspondence to his migration agent and not notifying his agent of the outcome of that application. This left him in limbo as to his ability to obtain or the need for a Temporary Graduate visa. The applicant submitted that he undertook courses of study in painting and decorating during the interim period, and this should have been considered by the Tribunal together with his other personal circumstances.
The applicant asked the Court to consider his personal circumstances, his diligent pursuit of work experience and study, and his wish for an opportunity to pursue his goal of one day opening a laboratory. He conceded it was ‘not a perfect application’, but he did the best he could and ‘didn’t want it all to go to waste’.
The Court reiterated its role, and the need to identify jurisdictional error in the Decision. The applicant had no further submissions and could not assist the Court by identifying jurisdictional errors in the Decision.
CONSIDERATION
The power to summarily dismiss an application for judicial review is now to be found in r 23.08 of the 2025 Rules. The Court may dismiss if the proceeding or claim for relief has no reasonable prospect of success (r 23.08(1)). The power to do so must be exercised with caution (see Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] (Spencer)). The power to summarily dismiss has not altered under the 2025 Rules and nor have the principles to be applied when considering whether to do so.
The Minister bears the onus of proof to establish that the applicant has no reasonable prospects of success because the Decision is not affected by jurisdictional error (see Spencer at [22] and Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [6]–[7]). The onus on the moving party is heavy (see Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [10]).
In the Decision, the Tribunal correctly identified the issue to be determined and correctly identified the relevant evidence required to satisfy cl 485.211 of the Regulations. The applicant did not complete a course of study in the six months preceding the date of the application for the visa. The applicant concedes that was the case. The Tribunal has no discretion to dispense with compliance with the requirements of the Regulations and the applicant did not meet the primary criteria required to be granted the visa.
None of the grounds of review identified by the applicant in the application for judicial review disclose material jurisdictional error.
In LPDT v Minister f or Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2024) 418 ALR 152; [2024] HCA 12 (LPDT), the plurality said at [3]:
[3]…Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Grounds one, two, four, five and eleven seek to challenge the decision of the delegate of the Minister and do not identify jurisdictional error by the Tribunal. The Court does not have jurisdiction to review a decision of the delegate, which is a primary decision within the meaning of s 476 of the Act. Therefore, these grounds of review have no reasonable prospects of success.
Ground three of the application for judicial review is vague and unclear but does not identify an error of the kind referred to by the High Court in LPDT. Reference is made to the category of visa, but it is unclear why consideration of the completion of a Diploma in Marketing is relevant to the application for review. The lack of particularity and vagueness of this ground is itself a sufficient basis to dismiss it (NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]).
There was also no denial by the Tribunal of procedural fairness to the applicant. The applicant was invited to appear by telephone at a hearing and he appeared by telephone to give evidence and make submissions. The applicant conceded that he did not satisfy the requirements of the Regulations. The hearing was held by telephone during the COVID-19 restrictions, and the applicant did not object to the mode of hearing. Importantly, there was no evidence available to the applicant or the Tribunal to satisfy the requirements of cl 485.211 of the Regulations and that fact could not have changed, had there been a face-to-face hearing. Grounds six to nine also have no reasonable prospects of success in the circumstances of this case.
Ground ten is also misconceived. The course of study undertaken by the applicant after the application for the visa and in relation to a different vocation was not a relevant matter that the Tribunal was required to consider and failed to consider when conducting the review. There was no error by the Tribunal in rejecting the applicant’s request that it exercise a discretion to allow him to make a fresh application (CB 80 [11]-[12]) because it does not have that discretion. Once it was established and conceded that the applicant did not meet the requirements of the Regulations, the Tribunal was bound to affirm the delegate’s decision to refuse to grant the visa. Ground ten also has no reasonable prospects of success.
In the circumstances and for the reasons given above, the applicant’s application for judicial review of the Decision has no reasonable prospects of prosecution and should be summarily dismissed. The Registrar was correct to order summary dismissal and the application for review of the Registrar’s orders must also be dismissed. The orders of the Registrar made 14 August 2025 are affirmed.
COSTS
Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for review of the Registrar’s orders in the sum of $1,500.00. This was in addition to the sum of $4,189.38, awarded by the Registrar on 14 August 2025, which is the scale amount for an application concluded at or before an interlocutory hearing provided for in Sch 2, Pt 3, Div 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
The sum claimed of $1,500.00 is fair and reasonable in the circumstances of this case and will be ordered to be paid by the applicant.
ORDERS
The time within which to file an application for review of the exercise of power by a Registrar of the Court is extended to 1 September 2025.
The application for review of the Registrar’s exercise of power filed on 1 September 2025 is dismissed.
The order of the Registrar made 14 August 2025 summarily dismissing the application for judicial review is affirmed.
The order for costs made by the Registrar on 14 August 2025 is also affirmed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application for review, fixed in the sum of $1,500.00.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 10 October 2025
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