Hakeem v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1469
•11 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hakeem v Minister for Immigration and Citizenship [2025] FedCFamC2G 1469
File number(s): MLG 2734 of 2020 Judgment of: JUDGE FARY Date of judgment: 11 September 2025 Catchwords: MIGRATION – application for Skilled (Provisional) (Class VC) (Subclass 485) visa – Administrative Appeals Tribunal not satisfied that applicant met cl 485.212(a) of Schedule 2 of the Migration Regulations – delegate’s decision to refuse the grant of the visa affirmed – whether in interests of administration of justice to grant an extension of time application – no substantial merit to grant extension of time found – application dismissed. Legislation: Australian Constitution s 75(v)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256(1)
Federal Court of Australia Act 1976 (Cth) 31A
Migration Act 1958 (Cth) s 47(1), s 65(1), s 143, s 360, s 359A, s 474, s 476, s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 23.08, r 25.14, I 9(b) Pt 2 Sch 2, Div 1 Pt 3 Sch 2
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 3.06, r 13.13(a)
Federal Circuit Court Rules 2001 (Cth) r 44.11(b), r 44.12
Migration Regulations 1994 (Cth) cl 485.212, Pt 485 Sch 2Cases cited: Anand v Minister for Immigration and Citizenship (2013) 136 ALD 633
Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256
Da Costa Da Rocha v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FedCFamC2G 206
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Kaur v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1414
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
Kumar v Minister for Immigration and Border Protection [2018] FCA 140
Kumar v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 307
Leach v Burston [2022] FCA 87
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nareddula v Minister for Immigration, Citizenship & Multicultural Affairs (No 2) [2024] FedCFamC2G 255
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Quach v Commissioner of Taxation [2019] FCA 1729
Spencer v Commonwealth of Australia (2010) 241 CLR 118SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of last submission/s: 3 September 2025 Date of hearing: 3 September 2025 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Mr McDonald, Clayton Utz Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 2734 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMMED ABDUL HAKEEM
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
11 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The applicant’s application for review of the decision of Registrar Champman made on 24 July 2025 be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $1,364.75.
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 FARY:
INTRODUCTION
By way of Application filed on 20 August 2025, the applicant (Applicant) seeks review of a decision made by a Registrar of this Court (Registrar Review Application), pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).
On 24 July 2025, a Registrar summarily dismissed the principal Application (Application), which sought judicial review of a decision made by the Second Respondent (Tribunal) to affirm a decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa (Visa).
While the Application was filed outside of the prescribed 7 day timeframe provided by r 3.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 GFL Rules), both parties made submissions and proceeded as if leave had been granted. Given the manner in which the hearing was conducted, I shall treat the time for filing the Review Application as taken to have been extended to and including the date of filing.
Since the Registrar Review Application was filed, the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 GFL Rules) have come into force.
I have made Orders giving leave to the Minister to further amend the Minister’s Response to reflect the changes made under the 2025 GFL Rules (Further Amended Response).
The hearing of the Application took place at the Melbourne Registry of the Court on 3 September 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 3 September 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Applicant’s Application has no reasonable prosects of success and ought to be summarily dismissed pursuant to r 23.08 of the 2025 GFL Rules.
BACKGROUND
The Applicant is a citizen of India.
On 15 March 2019, the Applicant applied for the Visa, the subject of these proceedings.[2] The Applicant provided a Pearson Test of English (PTE) Score Report dated 6 March 2019 in support of his Visa application.[3]
[2] Court Book (CB) (1-14).
[3] CB 13, 29.
On 21 June 2019, a Delegate of the Minister refused to grant the Visa (Delegate’s Decision) on the basis that the Applicant failed to satisfy cl 485.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[4]
[4] CB 35-42.
On 8 July 2019, the Applicant applied to the Tribunal for review of the Delegate’s Decision with the assistance of Synchrothink Consultancy (Applicant’s Representative).[5]
[5] CB 43-53.
On 2 June 2020, the Applicant was invited to attend a hearing before the Tribunal on 18 June 2020 by teleconference.[6]
[6] CB 66-78.
On 10 June 2020, the Applicant’s Representative wrote to the Tribunal and sought postponement of the hearing as the Applicant was self-isolating due to COVID-19.[7]
[7] CB 79.
On 12 June 2020, the Tribunal denied the request for postponement on the basis that the hearing was scheduled to take place by teleconference. The Tribunal noted that the Applicant “should be advised that to comply with cl 485.212 the PTE test must have been undertaken prior to his application. Any subsequent test will not meet the criteria".[8]
[8] CB 81-90.
On 18 June 2020, the Applicant attended the hearing by teleconference.[9] At the hearing, the Applicant provided the following documents:
(a)A death certificate of the Applicant’s mother, dated 2 July 2019;[10] and
(b)A PTE Academic Score Report dated 10 August 2019, showing an overall score of 50.[11]
[9] CB 98-100.
[10] CB 102.
[11] CB 103.
On 29 June 2020, the Applicant’s Representative wrote to the Tribunal and requested that the Tribunal’s reasons be sent by email.[12]
[12] CB 104-105.
On 2 July 2020, the Tribunal affirmed the Delegate’s Decision (Tribunal’s Decision).[13]
[13] CB 112-114.
On 3 July 2020, the Applicant was notified of the Tribunal’s Decision by way of email to the Applicant’s Representative.[14]
[14] CB 106-114.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 112 to 114 of the Court Book.
The Tribunal first outlined the procedural background to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [1] to [5].
The Tribunal identified the issue on review as being whether the Applicant satisfied cl 485.212 of the Regulations.[15] This clause required evidence that the Applicant:
(a)had undertaken an English language test within the specified time and test score;[16] and
(b)held a passport of a type specified in the relevant instrument.[17]
[15] CB 113 [9].
[16] cl 485.212(a) of the Regulations.
[17] cl 485.212(b) of the Regulations.
The Tribunal found that there was no evidence that the Applicant held a passport under the relevant instrument, being IMMI 15/062 Specification of English Language Tests, Scores and Passports 2015 (Instrument). The Applicant therefore failed to satisfy cl 485.212(b) of the Regulations.[18]
[18] CB 113 [9]-[10].
The Tribunal then considered whether the Applicant met cl 485.212(a) of the Regulations.[19] The Tribunal summarised the Applicant’s evidence that he had obtained a PTE test score of 49 on 6 March 2019,[20] and a further test score of 50 when he re-took the test on 10 August 2019.[21] As the Applicant failed to achieve a PTE score of 50 or greater at the time of the Visa application, the Tribunal found that the Applicant failed to meet cl 485.212(a) of the Regulations.[22]
[19] CB 113-114 [11]-[20].
[20] CB 113 [11].
[21] CB 113 [11].
[22] CB 114 [19]-[21].
PROCEEDINGS IN THIS COURT
On 27 July 2020, the Application was filed in this Court, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act 1958 (Cth) (Migration Act).
On 10 February 2021, Orders were made by Registrar Carlton of this Court for the directions listed be vacated. Pursuant to r 44.11(b) of the Federal Circuit Court Rules 2001 (Cth) (2001 Rules), for the Application be listed for a "show cause" hearing under r 44.12 of the 2001 Rules. For the First Respondent to file and serve by 7 April 2021: the Court Book. For the Applicant to file and serve at least 28 days before the hearing: any amended application, any supplementary Court Book, and written submissions. For the First Respondent to file and serve at least 14 days before the hearing: written submissions.
On 3 June 2025, Orders were made by Registrar Chapman of this Court for the First Respondent’s name be amended to “Minister for Immigration and Citizenship”. For the Second Respondent’s name be amended to “Administrative Review Tribunal”. That all extant Orders inconsistent with these Orders be vacated, including Order 2 of the orders made by Registrar Carlton on 10 February 2021. That the Applicant file and serve any amended application by no later than 18 June 2025. That the First Respondent file and serve submissions in support of the summary dismissal application and any further evidence by 25 June 2025. That the Applicant file and serve any submissions in opposition to the summary dismissal application and any further evidence by 9 July 2025. That the application for summary dismissal by listed for hearing on a date to be advised. The Court noted that the First Respondent would send the Applicant a courtesy copy of the Court Book within 7 days. The Court also noted that the Applicant does not require an interpreter.
In the Minister's Outline of Submissions filed 25 June 2025, the Minister sought an Order that the Application be dismissed pursuant to r 13.13(a) of the 2021 GFL Rules. The Application was listed for this purpose before a Registrar on 24 July 2025. The Applicant did not file any further material despite being given opportunities to do so.
On 24 July 2025, Orders were made by Registrar Chapman of this Court for the Application for judicial review be summarily dismissed pursuant to r 13.13(a) of the 2021 GFL Rules with costs.
The principal Application contains the following grounds of review (Grounds of Review):
1. ERROR IN JUDGMENT
I have taken the required PTE score before the decision was made by AAT. I provided evidence to the Tribunal that I undertook a PTE English language test on 6 March 2019 and achieved a test score of 49. I also provided evidence that I undertook a second PTE English language test on 10 August 2019, wherein he achieved a test score of 50.
The latest score met the 485 criteria and have not been considered. (Ground 1).
2. Denial of Natural Justice
I have not been given an opportunity to proper justice as my PTE scores have been Ignored. Had I been given access to the justice; I would have been granted my visa. The Tribunal took the decision, that based upon the evidence before the Tribunal, where I have a PTE English score of 49 from the test undertaken on 6 March 2019, that I do not satisfy the English language requirements of cl.485.212(a). (Ground 2).
(Words in bold added, otherwise as written)
On 20 August 2025, the Applicant filed the Registrar Review Application.
The Application for review seeks the following orders (Review Grounds):
1. File no. MLG2734/2020, be reopened please.
2. Application was dismissed incorrectly by registrar.
3. Federal Circuit and Family Court Appeal be allowed please.
(Words as written)
The Applicant relied upon the following documents:
(a)Application filed 27 July 2020;
(b)Affidavit of Mohammed Abdul Hakeem affirmed 24 July 2020 (Applicant's Affidavit affirmed 24 July 2020);
(c)Affidavit of Mohammed Abdul Hakeem sworn 19 August 2025 (Applicant's Affidavit sworn 19 August 2025); and
(d)Review Application filed 20 August 2025.
The Minister relied upon:
(a)The Amended Response, filed 28 March 2025; and
(b)The Minister's Outline of Submissions filed 25 June 2025.
Both parties relied on the Court Book.
This matter was heard on 3 September 2025 at the Hearing before me.
APPLICANT’S SUBMISSIONS
The Applicant did not file any written submissions.
The Applicant made oral submissions at the Hearing.
The Applicant submitted that at the time when he lodged his Visa application, he was not in a good mental state as a result of the loss of his mother.
The Applicant stated that he thought that he had “qualified in all modules” and was not aware of his total PTE score or that it was less than the score required by the Regulations.
RESPONDENT’S SUBMISSIONS
The Minister relied upon its submissions filed 25 August 2025 in support of the application for summary dismissal on the basis of no reasonable prospects of success.
The Minister’s solicitor expanded on those submissions at the Hearing.
Ground 1
By Ground 1, the Applicant appears to allege that the Tribunal incorrectly applied the law and failed to consider the Applicant’s 10 August 2019 PTE test where he obtained a score of 50.
The Minister submits that the Tribunal made the only decision open to it, namely, that the Applicant did not satisfy cl 485.212(a) of the Regulations. The Minister contends that the Tribunal was not required to consider the results from the 10 August 2019 PTE test as this was taken after the Visa application was lodged.[23] The Minister submits that the Tribunal was required to affirm the Delegate’s Decision.
[23] Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [15].
Ground 2
The Minister submits that the Tribunal complied with its procedural fairness obligations under Division 4 of Part 7 of the Migration Act.[24]
[24] CB 98.
The Minister contends that there was no information before the Tribunal which was required to be put to the Applicant for comment under s 359A, as the information relied upon fell within s 359A(4) of the Migration Act.
The Minister submits that the Applicant was on notice from the Delegate’s Decision of the issues arising under review.[25] The Minister further notes that the Tribunal:
(a)Sent the Applicant a letter dated 12 June 2020, informing him that he needed to obtain the relevant English language score prior to the Visa application and that subsequent tests would not meet the criteria;[26] and
(b)Confirmed with the Applicant orally that he had obtained a PTE test score of 49. The Tribunal informed the Applicant that this score failed to meet the criteria under cl 485.212 of the Regulations.[27]
[25] CB 35-42.
[26] CB 82.
[27] CB 114 [14]-[18].
The Minister submits that the grounds fail and should be summarily dismissed.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[28]
[28] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002).
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[29] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[30]
[29] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allson CJ, Besanko and O’Callaghan JJ at [17].
[30] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 (LPDT) at [2].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[31] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error 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”.[32] Different kinds of error may overlap.[33] The categories are not closed.[34]
[31] Plaintiff S157/2002.
[32] LPDT at [3].
[33] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[34] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[35] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[36] It has been described as an “undemanding” standard.[37]
[35] LPDT at [7].
[36] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[37] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].
Temporary Graduate Visa (Subclass 485)
The Temporary Graduate Visa (Subclass 485) allows international students to live, study and work after they have finished their studies.
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
The criteria that the Applicant was required to satisfy for the grant of a Temporary Graduate Visa (Subclass 485) are set out in Part 485 to Schedule 2 of the Regulations.
Clause 485.212 of Schedule 2 of the Regulations provides:
The application was accompanied by evidence that:
a. the applicant:
i.has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and
ii.has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or
b. the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.
The legislative Instrument made for the purposes of cl 485.212(a)(i) is IMMI 15/062 Specification of English Language Tests, Scores and Passports 2015.
The Instrument provided, relevantly:
SPECIFY for subparagraphs 476.213(a)(ii) and 485.212(a)(ii) of the Regulations the following minimum required overall test score and the minimum required scores for each of the test components:
(Emphasis added)
English test Minimum
overall ScoreTotal overall score Minimum scores for English test components Listening Reading Speaking Writing IELTS 6 - 5 5 5 5 OET B - B B B B TOEFL iBT - 64 4 4 14 14 PTE Academic 50 - 36 36 36 36 Cambridge English: Advanced (CAE) (taken on or after 1 January 2015) 169
The Instrument specified the following period:
SPECIFY for subparagraphs 476.213(a)(ii) and 485.212(a)(ii) of the Regulations the following English language tests must have been undertaken within the three years before the day on which the application was made:
….
c. a Pearson Test of English Academic (PTE Academic); or
…Summary Judgment
Section 143 of the FCFCOA Act provides relevantly that summary judgment may be given in relation to the whole or part of any proceedings where “the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding”.
Rule 23.08 of the 2025 GFL Rules provides that the Court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.
The relevant principles are summarised as follows:
(a)The party seeking summary disposal bears the onus of persuading the court that the proceeding has no reasonable prospects of success and should be disposed of summarily;[38]
(b)“The enquiry required to be undertaken is whether there is a reasonable prospect of prosecuting the proceeding, not an enquiry directed to whether a certain or concluded determination could be made that the proceeding will necessarily fail”;[39]
(c)“It may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success”;[40]
(d)The word “may” in s 143 of the FCFCOA Act is used to indicate the conferral of power, rather than a discretion, such that if the criterion “no reasonable prospects of success” is satisfied, then the court is bound to exercise the power of summary disposal;[41]
(e)Section 143 of the FCFCOA Act has lowered the bar for summary disposal from previous provisions; and[42]
(f)The power to summarily dismiss must be exercised with “caution”.[43]
[38] Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at [45].
[39] Leach v Burston [2022] FCA 87 (Leach) at [36].
[40] Quach v Commissioner of Taxation [2019] FCA 1729 at [12].
[41] Leach at [36].
[42] Noting s 143(3) of the FCFCOA Act.
[43] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24].
In Spencer v Commonwealth of Australia,[44] French CJ and Gummow J said in relation to 31A of the Federal Court of Australia Act 1976 (Cth) (which is expressed in similar terms to s 143 of the Federal Circuit and Family Court of Australia Act):[45]
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. …
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a ‘fanciful’ prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.
(Footnotes omitted)
[44] (2010) 241 CLR 118.
[45] At [24]-[26].
CONSIDERATION
This is a review of the Registrar’s Decision dismissing the Applicant’s Application on the basis that “the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding”. As the Hearing is a hearing de novo, I consider the Minister’s application for summary judgment (constituted by the Further Amended Response), afresh.
The decision under review was the decision of the Tribunal by which it rejected the Applicant’s application for a Temporary Graduate Visa (Subclass 485) on the ground that the Applicant did not satisfy the requirements of cl 485.212(a)(ii) at the time when the application for the Visa was made; namely, the requirement relating to an English language test.
The Minister’s application for summary judgment requires consideration of the grounds that are articulated in the Applicant’s Application for judicial review.
Ground 1 is that:
ERROR IN JUDGMENT
I have taken the required PTE score before the decision was made by AAT. I provided evidence to the Tribunal that I undertook a PTE English language test on 6 March 2019 and achieved a test score of 49. I also provided evidence that I undertook a second PTE English language test on 10 August 2019, wherein he achieved a test score of 50. The latest score met the 485 criteria and have not been considered.
The dispositive issue before the Tribunal was that cl 485.212(a)(ii) was not satisfied at the time of the Applicant’s application, and not “accompanied” by evidence that he had achieved the score specified by the Minister within the period or in accordance with the requirements, as specified in the Instrument.
The relevant instrument was IMMI 15/062 Specification of English Language Tests, Scores and Passports 2015. The Instrument specified a “minimum overall total” score of “50” for “PTE Academic”, which is the name of the English test relied upon by the Applicant. The relevant period was on a test “within the three years before the day on which the application was made”.
At the time the application was made, the Applicant’s PTE test score was 49.[46] The evidence that “accompanied” the Applicant’s application was in respect of that test score. Subsequent to the making of the application, and prior to the Tribunal’s Decision, the Applicant re-sat the PTE and submitted evidence of achieving a PTE test score of 50.[47]
[46] CB 29. The “Overall score” is marked as a line on a bar graph.
[47] CB 103.
The critical parts of the Tribunal’s Decision were as follows:[48]
18. The Tribunal is satisfied, that based upon the evidence before the Tribunal, wherein the applicant produced a PTE English score of 49 from the test undertaken on 6 March 2019, that the applicant does not satisfy the English language requirements of cl.485.212(a).
19. The Tribunal is not satisfied that the application was accompanied by evidence that meet cl.485.212(a).
20. On the basis of the above, the applicant does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.
[48] CB 114 [17]-[19].
While in other contexts, there might be some flexibility around a requirement that something “accompany” an application,[49] in the context of cl 485.212, there is no flexibility to the requirement that the PTE Academic result be in respect of a test “undertaken within the three years before the day on which the application was made”. Further, the authorities in this Court and the Federal Court have consistently held that there is no discretion to waive the requirements of cl 485.212(1) of Schedule 2 to the Regulations.[50]
[49] Anand v Minister for Immigration and Citizenship (2013) 136 ALD 633.
[50] See Kumar v Minister for Immigration and Border Protection [2018] FCA 140 at [23]; Da Costa Da Rocha v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FedCFamC2G 206 at [56]; Kumar v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 307 at [26] and [30]; Nareddula v Minister for Immigration, Citizenship & Multicultural Affairs (No 2) [2024] FedCFamC2G 255 at [48]; Kaur v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1414.
There can be no question on the evidence before the Tribunal that the evidence that “accompanied” the Applicant’s application did not satisfy the requirements of cl 485.212(a)(ii). The subsequent PTE Academic result was not one “undertaken within the three years before the day on which the application was made”.
I am satisfied that Ground 1 has no reasonable prospects of success.
Ground 2 is that:
Denial of Natural Justice
I have not been given an opportunity to proper justice as my PTE scores have been Ignored. Had I been given access to the justice; I would have been granted my visa. The Tribunal took the decision, that based upon the evidence before the Tribunal, where I have a PTE English score of 49 from the test undertaken on 6 March 2019, that I do not satisfy the English language requirements of cl.485.212(a).
While Ground 2 uses the heading “Denial of Natural Justice”, it would appear to substantially rely on the same matter as Ground 1. It can be rejected for the reasons I have given above.
For completeness, I do not consider that there was any denial of the statutory procedural fairness provisions of Division 7 of Part 4 of the Migration Act. The Applicant was invited to give evidence and make submissions in accordance with s 360, and he did so. There was no “information” that the Tribunal was required to give the Applicant particulars of, in circumstances where the information was that submitted by the Applicant. There was no dispositive “issue arising in relation to the decision under review” that the Tribunal was required to give the Applicant notice of, noting that the “issue” of his failure to satisfy cl 485.212 was one identified in the Delegate’s Decision that was provided to the Tribunal, and in a letter from the Tribunal dated 12 June 2020.[51]
[51] CB 82.
I am satisfied that Ground 2 has no reasonable prospects of success.
As the Applicant was self-represented in the Hearing before me, I have considered the Tribunal’s Decision to see if any jurisdictional error or arguable jurisdictional error is apparent on the face of the record and have not identified any error or arguable error.[52]
[52] SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445.
CONCLUSION
Having regard to the provisions and principles set out above, I am satisfied that the Applicant has no reasonable prospect of successfully prosecuting the Application for judicial review.
Having regard to the manner in which the Hearing was conducted, I have not formally addressed the question of an extension of time to review the Registrar’s Decision. In the circumstances and having regard to my conclusions on the substantive questions, the appropriate order is to dismiss the Registrar Review Application.
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $1,364.75, being a half day hearing fee specified in Item 9(b) to Part 2 of Schedule 2 to the 2025 GFL Rules (noting that Part 2 is headed “Proceedings other than Migration Proceedings”).[53] I am satisfied that the Minister is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[54] I am further satisfied that it is appropriate to make an order for payment of the amount sought by him as a lump sum amount that is appropriate having regard to the extent of the work undertaken as evidenced by the court file.[55] While the Item relied upon has no direct application, it provides a reference point as to what is an appropriate amount for the purpose of a lump sum costs order.
[53] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
[54] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[55] See 25.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) and Division 1 of Part 3 of Schedule 2.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate: MC
Dated: 11 September 2025
0
22
8