Duggal v Minister for Immigration and Citizenship
[2025] FedCFamC2G 947
•19 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Duggal v Minister for Immigration and Citizenship [2025] FedCFamC2G 947
File number(s): MLG 4593 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 19 June 2025 Catchwords: MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – Summary dismissal - Application for review of Registrar’s decision – Application for an extension of time – Extension granted – Rule 21.02(2) – Review allowed - Application for judicial review reinstated. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 202, 254, 256
Migration Act 1958 (Cth), Pt 5, Div 5, ss 359A, 359AA, 360, 360A
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)(a), 21.04(1)
Migration Regulations 1994 (Cth), Sch 2, cls 500.215, 500.211(a), 500.214
Cases cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Allison v Murphy [2021] FCAFC 232
Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256; [2006] HCA 27
Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93
Chikweu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1478
Hunter Valley Development Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Khan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 262
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905
Sultan v Minister for Immigration and Multicultural Affairs [2025] HCASJ 17
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of last submission/s: 16 May 2025 Date of hearing: 1 May 2025 Place: Melbourne Solicitor for the Applicant The applicant appeared in person, self-represented Solicitor for the Respondents Mr J Mangos, Sparke Helmore Lawyers ORDERS
MLG 4593 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SWAPAN DUGGAL
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
19 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’;
2.The time within which to bring the Review Application under r 21.02(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) is extended to 19 March 2025;
3.The Review Application filed 19 March 2025 is allowed;
4.The orders of the Registrar made 2 March 2025 be set aside;
5.The application for judicial review filed 20 December 2019 be reinstated and listed for final hearing on a date to be fixed; and
6.The costs of the Review Application 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 CORBETT
The applicant seeks to review the exercise of power of a Registrar of this Court made 7 March 2025. The Registrar ordered that the applicant’s application for judicial review filed on 20 December 2019 be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
The applicant sought judicial review of a decision of the second respondent (Tribunal) made 4 December 2019. The Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Class TU) (Subclass 500) visa (visa).
The application for judicial review of the Tribunal’s decision was filed in this Court on 20 December 2019 (substantive proceeding).
On 7 March 2025, the substantive proceeding was summarily dismissed by a Registrar pursuant to r 13.13(a) of the Rules on the basis that it had no reasonable prospects of success.
On 19 March 2025, the applicant sought review of the Registrar’s Decision (Review Application). The Review Application was supported by an affidavit of the applicant affirmed 19 March 2025.
The time within which to file the Review Application is within seven days of the Registrar’s exercise of power (r 21.02(1) of the Rules). The Review Application was not filed within the time required by the Rules. The Court may extend that time on any terms that it thinks fit, if it is in the interests of justice to do so (r 21.02(2)(a) of the Rules).
If a Review Application is commenced in accordance with the Rules, then the review must proceed by way of a hearing de novo (r 21.04(1) of the Rules). The onus to establish that a proceeding has no reasonable prospects of success is on the party applying for summary dismissal. In this case it is the Minister (see Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 (Spencer)).
The issue to be determined on an application for summary dismissal is whether the application for judicial review has any reasonable prospects of successful prosecution. This requires the Court to consider whether there is a real or genuine question to be determined at a final hearing. The threshold is not high and the power to summarily dismiss a claim must be exercised with caution.
For the reasons that follow, the time within which to file the Review Application is extended to 19 March 2025 and the Review Application will be allowed. The orders of the Registrar made 7 March 2025 will be set aside and the proceeding listed for final hearing on a date to be fixed.
References 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 on 1 May 2025, marked exhibit “R1”.
BACKGROUND
The applicant is an Indian citizen.
On 5 August 2017, the applicant applied for a Temporary Graduate (subclass 485) visa which was granted on 5 September 2019 (CB 1-2).
On 31 March 2019, the applicant applied for the visa (CB 3-19).
On 7 June 2019 and 9 July 2019, the Department of Home Affairs sent the applicant requests for information to satisfy the primary criteria required for the visa under the Migration Regulations 1994 (Cth) (Regulations), namely evidence of English language proficiency, Overseas Student Health Cover during the period of the applicant’s intended stay in Australia, and proof of satisfactory health examinations (CB 25-40). At the time of the application for the visa, the applicant stated that he held a current Certificate of Enrolment for a registered course of study (CB 3).
On 9 August 2019, a delegate of the Minister refused to grant the visa on the basis that the applicant did not satisfy cl 500.215 of Sch 2 to the Regulations as he had not provided evidence of Overseas Student Health Insurance Cover, for the period of the applicant’s intended stay in Australia and therefore did not meet the primary criteria required for the grant of a Student visa (CB 41-6).
On 21 August 2019, the applicant applied to the Tribunal for review of the delegate’s decision (CB 47-8).
On 12 November 2019, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues in his case (CB 53-5). The hearing was scheduled to take place in person in Brisbane on 4 December 2019. The invitation requested that the applicant provide at least seven days prior to the scheduled hearing; a current Certificate of Enrolment or other document/s showing the applicant was currently enrolled in a course of study, documents showing the applicant’s previous studies in Australia including attendance certificates, academic transcripts and certificates of completion, and evidence of adequate arrangements for health insurance (CB 54). The applicant did not provide the requested information.
Meanwhile, PRISMS records dated 27 November 2019 obtained by the Tribunal confirmed that the applicant’s previous enrolments in the Certificate III and Certificate IV in Commercial Cookery were both cancelled on 22 August 2019 for cessation and non-commencement of studies (CB 56).
On 2 December 2019, the applicant appointed a migration agent to act on his behalf (CB 67-9). The applicant then attended the hearing before the Tribunal on 4 December 2019. The applicant was assisted by an interpreter fluent in the Punjabi and English languages. The applicant’s migration agent did not attend or appear at the hearing.
The applicant produced to the Tribunal at the hearing a letter of offer of enrolment from Griffin College offering enrolment in two courses of future study (CB 85–103). The applicant accepted the offer on 3 December 2019 (CB 103). However, the first page of the letter expressly stated, ‘This Offer letter is not valid for student visa purpose’ (letter of offer). The letter of offer also referred to a cooling off period that allowed the applicant to cancel the enrolment agreement within ten days of acceptance of the offer (CB 85).
The applicant also produced at the hearing a receipt for payment of part of the deposit required to be paid to Griffin College upon acceptance of the offer contained in the letter of offer (CB 104).
On 4 December 2019, the Tribunal gave oral reasons affirming the delegate’s decision not to grant the visa. Written reasons were provided the following day on 5 December 2019 (CB 120–23) (Decision).
The Minister produced a copy of ‘extracts from the transcript’ of the hearing and the oral reasons given by the Tribunal on 4 December 2019 which were annexed to an affidavit of the solicitor for the Minister affirmed 25 February 2025 (Exhibit “R2”).
TRIBUNAL DECISION
In the Decision, the Tribunal identified the criteria required by the Regulations for the grant of the visa (CB 121 [5]).
At paragraphs [6] to [10] of the Decision, the Tribunal explained that (CB 121):
[6] The delegate in your case refused to grant the visa on the basis that you did not satisfy the requirements of cl. 500.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that you met the health insurance requirement.
[7] You appeared before the Tribunal today to give evidence and present arguments. You provided evidence of overseas student health cover valid to 31 December 2020.
[8] The criteria for a subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
[9] While the delegate refused to grant the visa on the basis that you did not satisfy cl.500.215, the health insurance criterion, during the processing of the review, you ceased to be enrolled in a registered course.
[10] Clause 500.211 of the Regulations requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). You do not claim to meet any of the alternative criteria in cl.500.211.
The Tribunal then referred to the invitation letter from the Tribunal dated 12 November 2019 asking the applicant to provide a copy of the applicant’s current Confirmation of Enrolment or other documents that show that the applicant was currently enrolled in a course of study as required by cl 500.211(a) of the Regulations (CB 122 [13]).
The Decision records that the Tribunal put the applicant’s PRISMS records to the applicant for comment in accordance with s 359AA of the MigrationAct1958 (Cth) (Act) (CB 122 [17]). The Decision records that the applicant was also given the opportunity to seek further time to consider the records before commenting on them (CB 122 [16]). However, the transcript of the hearing does not clearly record that opportunity or that it was knowingly declined. The extract from the transcript also refers to the presence of a “representative” of the applicant but this is not recorded in the Decision or the Tribunal record (CB 82).
The applicant explained to the Tribunal that he ceased studying the previous courses in which he enrolled because he was in the process of a divorce and was suffering from associated stress. He then produced the letter of offer and a receipt recording partial payment for the course fees (CB 122 [18]). The transcript reflects a discussion with the applicant about whether the letter of offer was in fact provided to the Tribunal electronically the day before the hearing (R2, annexure JM-1, P- 30).
The Tribunal then concluded at paragraphs [24] and [25] of the Decision that there was no evidence that the applicant was enrolled in any course of study (CB 123). Therefore, the Tribunal was not satisfied that cl 500.211 of the Regulations was met (CB 122-3). The Tribunal found that the criteria for the grant of a subclass 500 (Student) visa were not met and affirmed the delegate’s decision to not grant the visa (CB 123 [24]-[26]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed 20 December 2019 identified the following grounds of review:
1.The tribunal failed to act according to the substantial justice and merits of the case and failed to act in a manner which was just and fair.
2.The tribunal misunderstood or misapplied the law or otherwise failed to rely on the relevant factors and information before it.
3.The tribunal member failed to place weight on the fact that I had an offer letter and the fee was paid and COE would have been issued within a day or two and had the tribunal member given me time I would have got a COE and therefore denied me procedural fairness
4.The tribunal member failed to apportion appropriate weight to the circumstances surrounding my case. My visa was refused on account of not having OSHC, however the member placed no weight on the fact that I already had the OSHC and placed undue weight on the fact that I did not have a COE when ln fact I had the signed offer letter and payment receipt for the fee.
5.My statutory declaration stating the facts about my case was also not considered. The fact that I did not have access to communication from the depmiment or tribunal regarding my visa application was ignored.
The application was supported by an affidavit sworn 20 December 2019 in which the applicant deposed:
1.I am the applicant in this matter.
2.I applied for a student visa on 31st of March 2019 which was refused on account of not providing health insurance and later on I lodged an appeal in the Administrative Appeals Tribunal and the tribunal affirmed the department's decision on 4th Dec 2019.
3.I wish to apply for the review of the AAT's decision for the reasons mentioned in this affidavit
4.The tribunal member failed to properly understand the circumstances surrounding my case and placed undue weight on me not having a Confirmation of Enrolment when Infact my student visa was refused on account of not having evidence of health insurance and therefore l contend the tribunal member erred by failing to properly, genuinely and realistically consider the evidence that was provided.
5.The tribunal member failed to take into consideration that I did not receive the request for the Health cover and I did not receive the request for evidence from the AAT. I had infact changed the AAT email address when I appointed a registered migration agent a few days before my case was to heard at the AAT. This was relevant to my case and the tribunal member failed to understand this.
6.The tribunal member also failed to consider that r had a letter of offer from a college and a student visa application onshore can be lodged using a letter of offer and a COE can be provided later and had l been given 2-3 days l would have provided evidence of the COE as well. Therefore the tribunal erred and placed undue weightage on not having COE at the time of tribunal hearing when infact I had provided evidence of the fee that had been paid to the college and also provided evidence of a signed offer letter to the tribunal
7.The tribunal member failed to take into consideration that l did not have access to my visa application and it was lodged through some unregistered agent and the college itself cancelled my COE. The tribunal member failed to take into consideration my limited ability in understanding English and failed to give me some more time to provide evidence of COE, and denied me procedural fairness.
Procedural orders were made by Registrars of this Court on 22 April 2020 and 26 November 2024. The hearing of the application for summary dismissal was fixed for hearing on 6 February 2025 and then adjourned until 7 March 2025. On 7 March 2025, there was a hearing via video link at which the applicant appeared assisted by an interpreter fluent in the Punjabi and English languages.
The applicant then filed the Review Application on 19 March 2025 which was listed for hearing before this Court in person at Melbourne on 1 May 2025.
The solicitors for the Minister filed an outline of written submissions on 30 April 2025. The applicant did not seek to file an amended application for judicial review or further affidavits before the hearing of the summary dismissal application or any substantive affidavit before the hearing of the Review Application. The applicant did not file or serve any outline of submissions.
APPLICATION TO APPEAR BY VIDEO LINK
On 23 April 2025, the applicant emailed chambers and requested that the hearing be conducted by video link as follows (verbatim):
Due to personal circumstances I am currently in Brisbane and my hearing losted on 1 May 2025.
I am unable to attend it in person and requeat the Court to grant me a leave to appear online.
I will be highly appreciatied.
The applicant was then informed by email that the hearing before the Court would be in person unless the applicant filed evidence in the form of an affidavit for consideration for an adjournment. The affidavit needed to explain why the applicant could not appear in person at Melbourne for medical or other compelling reasons.
On 29 April 2025, the applicant filed with the Court an affidavit affirmed on 24 April 2025. The affidavit stated that the applicant's address was in Melbourne. The affidavit was in the following terms (verbatim):
1.I am the Applicant in the above matter.
2.My judicial review matter is listed for a hearing on 1 May 2025, to take place at the Melbourne Registry, Commonwealth Law Courts Building, 305 William Street, Melbourne, VIC 3001, Courtroom 6E.
3.I am currently residing in Brisbane and am experiencing health issues that make it impractical for me to travel to Melbourne for the hearing.
4.Enclosed with the request is a medical certificate confirming that I am unfit to travel.
5.In light of this, I respectfully request that the Honourable Court allow me to attend the hearing via an online link, such as Microsoft Teams or any other platform deemed appropriate by the Court.
6.I am willing to comply with any technical or procedural requirements necessary for online attendance and will ensure that I am available and fully prepared for the hearing on the scheduled date and time.
Annexed to the affidavit was a medical certificate from the Handford Road Family Practice located in Zillmere, Queensland. In that certificate, a General Practitioner certified that the applicant was ‘unfit to continue his usual occupation’ and ‘not fit for travel’ from 24 April 2025 to 7 May 2025 inclusive. The medical certificate is inadequate in many ways, it does not state the conditions suffered by the applicant or why he is incapable of attending Court.
Ordinarily, the parties to a proceeding are required to appear in person before the Court. On this occasion, the Court was prepared to grant leave to the applicant to appear via video link pursuant to s 202 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act). The power to permit appearance by video link is discretionary. Due to the late nature of the application, the Court was prepared to exercise that discretion to allow the applicant to appear by video link and to avoid a further adjournment of the hearing, or dismissal of the proceeding for non-appearance.
However, the Court is and remains concerned that the applicant has little, if any connection, to the State of Victoria and that this application may have been filed in the Victorian Registry for a collateral purpose. Nevertheless, in the interests of justice and the prompt and efficient disposal of this application, the Court was prepared to allow the applicant to appear by video link. This is the exception rather than the rule and would normally only be made in circumstances where there is a proper medical explanation for non-attendance in person or some other credible reason for non-attendance in person.
At the hearing of the Review Application on 1 May 2025 the applicant appeared in person via video link and was assisted by an interpreter fluent in the English and Punjabi languages.
Mr Mangos, solicitor, appeared for the Minister.
EXTENSION OF TIME
The time within which to seek review of the exercise of power by a Registrar is within seven days of the exercise of the power (r 21.02(1) of the Rules). The Review Application was filed 19 March 2025, five days beyond the time required by the Rules. The applicant did not provide an affidavit explaining the delay or why an extension of time should be granted pursuant to r 21.02(2)(a) of the Rules.
The principles upon which an extension of time may be granted by the Court are found in Hunter Valley Development Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344. The Court may have regard to the length of and explanation of the delay, whether the granting of the extension of time will prejudice the Minister, and the merits of the underlying application for judicial review. These principles were confirmed by the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28.
The applicant did not formally request an extension of time but because he was not legally represented, the Court proceeded on the basis that the applicant sought an indulgence from the Court. The Court asked the applicant to explain why an extension of time should be granted.
In this case, the explanation given for the delay by the applicant at the hearing was that he did not know that the time required by the Rules was seven days. He said that he spoke to an agent and was told that he had fourteen days to seek review. The Review Application was filed within fourteen days of the Registrar’s orders. The applicant was asked to explain the merits of his application for judicial review but he was unable to do so. After further explanation of the need to establish jurisdictional error by the Tribunal the applicant responded that the Tribunal erred because it “didn’t give me time to obtain the COE”. The applicant then explained from the bar table that he obtained the letter of offer before the Tribunal hearing and paid the fees but that the College required a further three days to issue the COE. The applicant explained that he had not obtained the letter of offer until just before the hearing due to his ongoing divorce and “family circumstances”.
In response to the extension of time application, the solicitor for the Minister submitted that no plausible explanation had been provided by the applicant as to why the Review Application was filed out of time. The applicant claimed to have spoken to an agent who advised him that he had fourteen days to apply, however, failed to provide evidence of such communications to this Court.
Mr Mangos acknowledged the Court’s discretionary powers under r 21.02 of the Rules, however, because of the applicant’s insufficient explanation as to the delay in filing the Review Application, it was submitted that the Court should not grant an extension of time on the basis that there was no merit in the substantive proceeding.
Normally, ignorance of the Rules is no excuse (see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38] per Foster J). However, here the delay was only five days beyond the time required by the Rules and the applicant claims that he was given incorrect advice. There is no prejudice suffered by the Minister if an extension is granted and for the reasons that follow there is some merit in the application for judicial review that requires further consideration. Therefore, the time within which to commence the Review Application will be extended to 19 March 2025 pursuant to r 21.02(2) of the Rules.
HEARING DE NOVO
Section 256 of the FCFCOA Act permits a party to a proceeding to apply to the Court for review of the exercise of a delegated power. The power to delegate functions of the Court to the Registrars is to be found in s 254 of the FCFCOA Act.
If a Review Application is made within time or an extension of time is granted, a review of the exercise of power by a Registrar must proceed by way of a hearing de novo in accordance with r 21.04 of the Rules. The Court is not concerned with the correctness of the Registrar’s decision or ‘redressing any perceived error in that decision’, rather, it is required to consider the application for reinstatement afresh (see Allison v Murphy [2021] FCAFC 232 per Besanko, Colvin and Downes JJ at [11]).
The Court confirmed at the hearing that the applicant received a copy of the Court Book prepared on behalf of the Minister and the Minister’s outline of written submissions provided to the Registrar dated 9 December 2024, supplementary written submissions dated 25 February 2025 and the Minister’s further supplementary written submissions dated 30 April 2025.
MINISTER’S SUBMISSIONS
The Minister relied on the outlines of written submissions filed and dated 9 December 2024, 25 February 2025 and 30 April 2025. It was submitted on behalf of the Minister that the application for judicial review filed 20 December 2019 did not disclose any jurisdictional error by the Tribunal when making the Decision and that the applicant’s claims for relief in the proceeding have no reasonable prospects of success. Mr Mangos addressed each ground of review in the application for judicial review.
Ground one argues that the Tribunal failed to act according to the substantial justice and merits of the case and failed to act in a manner which was just and fair. It was submitted that the Tribunal complied with its procedural fairness obligations under Pt 5, Div 5 of the Act. On 12 November 2019, the Tribunal invited the applicant to attend a hearing before it on 4 December 2019 in accordance with ss 360 and 360A of the Act. The Tribunal’s hearing invitation requested the applicant provide a copy of a current Certificate of Enrolment, documents showing the applicant’s past studies in Australia, and evidence of arrangements made for health insurance, at least seven days before the hearing. From the hearing invitation, the applicant was put on notice of the issues that the Tribunal was to consider at the hearing. So too from the delegate’s decision where a failure to comply with the Regulations meant that the visa was refused.
The applicant appeared before the Tribunal on the scheduled day and the Tribunal complied with s 359AA and discharged its obligations under s 359A of the Act. The Tribunal relied on PRISMS records available to it which showed that the applicant did not have a Certificate of Enrolment at the time of its decision. For these reasons, ground one could not succeed.
Ground two contends that the Tribunal misunderstood or misapplied the law or failed to rely on the relevant factors or information before it. In the circumstances, the Tribunal found on the evidence that the applicant did not hold a valid Certificate of Enrolment at the time of the hearing and therefore it was not required to consider the reasons for the applicant’s non-enrolment. The decision-making process by the Tribunal in the Decision did not reveal any error and ground two must be dismissed.
Ground three contends that the Tribunal failed to place weight on the fact that the applicant had a letter of offer, the course fees had been paid, the Certificate of Enrolment would have been issued in one to two days, and that the Tribunal refused to adjourn the matter to allow the applicant time to obtain the Certificate. It was submitted by the Minister that it was open to the Tribunal not to adjourn the application, and the exercise of its discretion was legally reasonable. The solicitor for the Minister submitted that the applicant had ample opportunity to provide evidence that he was enrolled in a registered course of study and that this was a requirement of the visa under cl 500.211 of the Regulations. No credible explanation for the belated letter of offer was provided to the Tribunal and therefore it acted reasonably in proceeding to affirm the delegate’s decision because there was no valid Certificate of Enrolment at the time of the hearing.
Mr Mangos further submitted that despite the applicant’s assertion that he sought further time to obtain a Certificate of Enrolment, he made no such request to the Tribunal. Rather, the applicant elected to respond to the information during the hearing and gave evidence that he did not have a valid Certificate of Enrolment. Mr Mangos otherwise relied on his affidavit affirmed filed 25 February 2025 (R2), which annexed the transcript of the Tribunal hearing in which the applicant did not request further time to produce evidence.
Ground four contends that the Tribunal failed to apportion appropriate weight to the circumstances of the applicant’s case, particularly that the applicant had obtained the relevant Overseas Student Health Cover, signed the letter of offer, and made partial payment of the course fee. The Tribunal considered the applicant’s evidence and found that he provided evidence of the health cover valid to 31 October 2020 (CB 121-22 [7], [22]). The Tribunal’s findings reveal no error, therefore, ground four of the application for judicial review cannot succeed.
Ground five asserts that the Tribunal failed to consider the applicant’s statutory declaration dated 4 December 2019 (CB 105-6). Mr Mangos submitted that it was not apparent from the Decision that the Tribunal overlooked or failed to consider any information contained in the statutory declaration. Therefore, ground five cannot succeed.
Finally, Mr Mangos submitted that the letter of offer did not necessarily indicate that the applicant intended to accept that offer or proceed to obtain a Certificate of Enrolment. It was also not established before the Tribunal that a signed letter of offer was actually returned to the College. It was further submitted that the applicant’s reasons for not producing the documents earlier, being his personal circumstances, are not justifications for not providing a Certificate of Enrolment in the absence of credible evidence.
For those reasons it was submitted that the application for judicial review had no reasonable prospects of success, and that the Registrar was correct to summarily dismiss the claims for relief pursuant to r 13.13(a) of the Rules. It was submitted that the Review Application should be dismissed with costs.
APPLICANT’S SUBMISSIONS
As the applicant was unrepresented, the Court gave the applicant the opportunity to explain why the Tribunal made an error in its Decision. In response, the applicant submitted “I have the offer letter on me but they didn’t give me time to obtain the Certificate of Enrolment”.
The Court queried why the applicant did not obtain the Certificate of Enrolment prior to appearing before the Tribunal, to which the applicant replied, “I had the offer letter from College. I had deposited the fees for COE, but they still had two to three days of processing left before they could issue a COE”. The Court confirmed that the applicant was aware he needed to obtain a current Certificate of Enrolment before attending the hearing before the Tribunal. The applicant submitted that at the time of the application, “I had some personal circumstances…was going through a divorce and other circumstances”.
The applicant further submitted that he “was asking for some time for the Certificate of Enrolment because we had already paid for the COE but it wasn’t issued”. This was not apparent from the transcript of the Tribunal hearing but it can easily be inferred from the applicant’s parting request to the Tribunal that he be given a “chance to complete my study for one year”. (R2, Annexure JM 1, P-7).
The applicant submitted that when he applied for the visa, he “had a divorce at that stage. I was in a bit of depression and had some circumstances. I did mention that I was going to study a course of one year”.
The Court asked the applicant why he cancelled his previous enrolments. The applicant told the Court that the Tribunal “asked me for medical insurance, and I had some ongoing personal family issues, so I wasn’t sure what to do”.
The Court took the applicant to the letter of offer (CB 85) and confirmed that the total tuition fee for the course was in the sum of $9,800.00 (CB 87). The applicant confirmed that this was the fee for the one-year Certificate III course he intended to pursue. The Court then referred the applicant to other payment information which provided that the total fees due as at the date of the letter of offer were $2,060.00 (CB 88). The Court took the applicant to a screenshot of a receipt for the payment of $1,500.00 (CB 104). After inquiring why the applicant made payment of that amount to Griffin College, the applicant told the Court, “for COE...the agent said because I had $1,500.00 at that time, so just to deposit that and I will get my COE, and then I can deposit the rest of the money in two to three days”.
The Court asked whether the applicant had any other submissions as to why the Tribunal made a mistake, to which the applicant said, “I was on a dependent visa, like I came on a dependent visa with my wife, and at that stage I was in depression and didn’t have much knowledge”.
To conclude his submissions, the applicant submitted to the Court that “I want to study here, and I just want a chance to complete my studies”.
REPLY
In reply, Mr Mangos repeated that the applicant had not clearly established to the Tribunal that he in fact intended to accept the terms of the letter of offer or to proceed with the proposed course of study. Therefore, the Tribunal was entitled to reject the letter of offer and proceed on the basis that there was no valid Certificate of Enrolment and therefore there was non-compliance with the Regulations.
CHIKWEU, BHANDARIAND KHAN
On 20 December 2024, the decision in Chikweu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1478 (Chikweu) was published. In that decision, Justice Feutrill found that a decision of the Tribunal contained a material jurisdictional error where the Tribunal failed to properly consider two criteria for the grant of a Student visa. The first criteria was whether the applicant met the financial capacity requirements under cl 500.214 of Sch 2 of the Regulations. The second criteria was whether the applicant met the enrolment criteria under cl 500.211(a) of Sch 2 of the Regulations in the absence of a Certificate of Enrolment.
In Chikweu at [46], his Honour said:
[46] If the only criterion remaining to be satisfied was enrolment and the appellant’s ability to produce evidence of a certificate of enrolment although unsatisfied was imminent, given the lengthy delay in the Tribunal’s review process, it is arguable that, in those circumstances, it would be legally unreasonable for the Tribunal not to adjourn the hearing, or at least consider adjourning the hearing, so as to afford the appellant an opportunity to adduce evidence to the effect that the enrolment criterion was satisfied at a later time when the decision was made: eg, Minister for Immigration & Citizenship v Li [2013] HCA 18; 249 CLR 332 at [23]–[31] (French CJ), [63]–[76], [82]–[85] (Hayne, Kiefel and Bell JJ), [88]–[92], [99]–[100], [105]–[113], [124] (Gageler J). Therefore, on the facts of this case, I do not consider the possibility of an adjournment and satisfaction of the enrolment criterion to be mere conjecture or speculation.
His Honour found that the Tribunal erred by acting unreasonably in failing to adjourn the hearing to allow the applicant to prove enrolment or at least to consider an adjournment to give the applicant to prove enrolment. The error was also material.
On 4 March 2025, this Court published the decision in Khan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 262 (Khan). In that case, a Registrar summarily dismissed the application for judicial review pursuant to r 13.13(a) of the Rules. The applicant in that case did not produce a Certificate of Enrolment to the Tribunal because he believed that the letter of offer that he provided to the Tribunal was sufficient proof of enrolment in a registered course of study. The Tribunal did not give the applicant an opportunity to obtain a Certificate of Enrolment or consider if he should be given an opportunity. In the circumstances, this Court held that summary dismissal should not be ordered because the decision of the Tribunal was arguably unreasonable. The Court also referred to a decision of Justice Burley in Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93 (Bhandari) where his Honour made similar findings to Justice Feutrill in Chikweu.
In the circumstances, and because the solicitor for the Minister had not had the opportunity to consider those decisions, the Court invited Mr Mangos and the applicant to file and serve further written submissions on the possible application of those three decisions to the facts in this case. Particularly so given the high threshold of satisfaction required before exercising the discretion to summarily dismiss.
On 16 May 2025, the solicitor for the Minister filed further supplementary submissions seeking to distinguish the three cases identified by the Court. The applicant was ordered to file submissions by 22 May 2025 but did not do so.
FURTHER SUBMISSIONS
On behalf of the Minister, it was submitted that the three cases referred to (Chikweu, Bhandari and Khan) were all distinguishable to the facts in this case. In Bhandari, it was submitted that the relevant letter of offer was unconditional whereas here there were several conditions that must be met before the letter of offer became unconditional. In Chikweu it was submitted the Court was considering a failure to comply with two different criteria and the failure to comply with one meant that the applicant was unlikely to comply with the other. It was held in Chikweu that the probability of the applicant paying the enrolment fee and obtaining a Certificate of Enrolment was not a matter of mere conjecture or speculation. In this case the applicant had not paid the full enrolment fee and had not yet satisfied conditions necessary to obtain a certificate. The applicant had not satisfied the primary criteria of obtaining a valid Certificate of Enrolment before the hearing which meant that it was not unreasonable to dismiss the application for review rather than grant the applicant a further indulgence.
In Khan, the applicant claimed to have misunderstood the Regulations and had been provided erroneous information by the course provider. Here there was no claim to have been mistaken simply a failure to apply for a Certificate of Enrolment within a reasonable time before the Tribunal hearing and a failure to secure a known and necessary requirement for the visa. It was submitted that the Decision did not disclose a material jurisdictional error and summary dismissal was appropriate in the circumstances.
CONSIDERATION
The power to summarily dismiss an application for judicial review is found in r 13.13 of the Rules. The Court may dismiss if the proceeding or claim for relief has no reasonable prospect of success (r 13.13(a) of the Rules). The power to do so must be exercised with caution (Spencer at [24]).
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 (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 Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256; [2006] HCA 27 at [46] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] as follows:
[57]…Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
In the present case, the applicant maintains that he should have been given a further opportunity by the Tribunal to satisfy the Regulations by producing a Certificate of Enrolment which he claimed would issue within a matter of days. The Decision records that the applicant made that position known at paragraph [21] (CB 122). The Tribunal found that there was no evidence of enrolment in a course of study (CB 123 [24]). It is reasonably arguable that in the circumstances of this case that the Tribunal acted unreasonably in dismissing the application for review and affirming the delegate’s decision in circumstances where the Tribunal did not consider the possibility of an adjournment or to offer an adjournment when the applicant’s circumstances and explanation for non-compliance with the Regulations were explained by the applicant. This case is not one clearly distinguishable from Chikweu and Bhandari without further and more detailed consideration of the facts and evidence available to the Tribunal and it is not a case where it is appropriate to summarily dismiss the applicant’s claims for relief without further argument or consideration at a final hearing.
The test for summary dismissal requires that the Court be satisfied that the applicant’s claims have no reasonable prospect of successfully prosecuting the proceeding or claims for relief. I am not satisfied that this case is an appropriate one in which to exercise the power to dismiss when there are reasonable arguments available to the applicant that the Tribunal acted unreasonably in reaching the Decision. The extracts of the transcript produced by the Minister also cause some concern in the approach taken by the Tribunal and confusion about the applicant’s evidence. The extracts also do not correspond with statements made by the Tribunal in the Decision and whether the Tribunal did invite the applicant to take time to consider and comment on the PRISMS records and whether in fact the applicant was seeking further time to submit a Certificate of Enrolment albeit belatedly and contrary to the clear direction of the Tribunal. These are matters that ought to be the subject of further exploration and consideration at final hearing and are not appropriate for determination by summary dismissal.
There are many cases that are appropriate for summary dismissal where there has been a clear failure to comply with the Regulations or where the applicant has failed to satisfy a primary criterion for the grant of a visa. However, the circumstances of this case, the decisions in Chikweu and Bhandari and cases such as Hossain v Minister for Immigration and Border Protection [2018] HCA 34 and the recent decision in Sultan v Minister for Immigration and Multicultural Affairs [2025] HCASJ 17 at [40] per Jagot J which may cast doubt on the application of Chikweu and Bhandari to the facts in this case and more generally, mean that summary dismissal is not appropriate in this case. The Review Application must succeed, and the Registrar’s orders made 7 March 2025 must be set aside.
OTHER MATTERS
On 13 May 2025 the name of the ministerial portfolio responsible for administration of the Act was changed to ‘Minister for Immigration and Citizenship’. The name of the first respondent will be amended accordingly.
ORDERS
The name of the first respondent will be amended to ‘Minister for Immigration and Citizenship’.
The time within which to bring the Review Application under r 21.02(2)(a) of the Rules is extended to 19 March 2025.
The Review Application filed 19 March 2025 is allowed.
The orders of the Registrar made 7 March 2025 be set aside.
The application for judicial review filed 20 December 2019 be reinstated and listed for final hearing on a date to be fixed.
The costs of the Review Application be reserved.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 19 June 2025
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