Dhillon v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1664

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…

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AGLC
Dhillon v Minister for Immigration and Citizenship [2025] FedCFamC2G 1664
Case
[2025] FedCFamC2G 1664
Decision Date

CaseChat Overview and Summary

The case of Dhillon v Minister for Immigration and Citizenship involved an Indian citizen who applied for a Skilled Graduate (Subclass 485) visa but was refused due to his failure to complete a course of study within six months prior to the application. The applicant subsequently applied for judicial review of the decision made by the Tribunal affirming the Minister’s delegate’s decision. The applicant alleged that the Tribunal failed to consider his further studies, his work experience, and denied him procedural fairness by conducting the hearing over the phone instead of in person. The Court was required to decide whether the application for judicial review had reasonable prospects of success and if the applicant was denied procedural fairness.

The Court examined the applicant’s grounds of review and found that none disclosed material jurisdictional error. The Tribunal had correctly identified the issue and relevant evidence required to satisfy the visa criteria, and the applicant conceded that he did not complete a course of study within the stipulated period. The Tribunal had no discretion to dispense with compliance with the Regulations, and the applicant did not meet the primary criteria required for the visa. The grounds of review either challenged the delegate’s decision or were vague and unclear, and therefore did not identify jurisdictional error. The Court held that the applicant had not identified any jurisdictional error in the Tribunal’s decision and found that the application for judicial review had no reasonable prospects of success.

The Court also considered whether the applicant was denied procedural fairness by the Tribunal’s decision to conduct the hearing over the phone. The Court found that the Tribunal had not erred in conducting the hearing by telephone, as it was a reasonable measure in light of the COVID-19 pandemic and did not affect the outcome of the case. The applicant did not demonstrate that he was prejudiced by the mode of hearing, and therefore, there was no denial of procedural fairness. The application for judicial review was summarily dismissed, and the orders of the Registrar were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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]).