Hameed v Minister for Immigration and Multicultural Affairs (No 3)
[2025] FedCFamC2G 217
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hameed v Minister for Immigration and Multicultural Affairs (No 3) [2025] FedCFamC2G 217
File number(s): SYG 86 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 27 February 2025 Catchwords: MIGRATION – application for reinstatement of application for review of decision of registrar – where registrar dismissed judicial review application under r 13.13(a) – where review of decision by registrar dismissed by Court following non-attendance by applicant at hearing – whether judicial review application had reasonable prospect of success – application for reinstatement dismissed with costs Legislation: Migration Act 1958 (Cth) s 359A, s s59AA, s 360, s 360(1), s 425(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(d), r 13.13(a), r 17.05, r 17.05(2)(a), r 21.02, r 21.02(1), r 21.04
Migration Regulations 1994 (Cth) cl 500.211 of Schedule 2
Cases cited: AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Hameed v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1362
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 79
Przyblowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Singh v Minister for Immigration and Border Protection [2016] FCA 108
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of hearing: 29 January 2025 Place: Parramatta Applicant: In person Solicitor for the Respondents: Ms S Edmondstone of Minter Ellison ORDERS
SYG 86 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AYESHA HAMEED
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application in a proceeding accepted for filing on 9 January 2025 is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $1,500.
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 ZIPSER
INTRODUCTION
This is my second judgment in this matter. In my first judgment (see Hameed v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1362 published on 16 December 2024 (First Judgment)), I made orders dismissing the applicant’s application for review of a decision of a registrar of this Court (Registrar Review Application) under r 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) because she did not appear at the hearing on 9 December 2024. The registrar had dismissed the applicant’s application to the Court for judicial review of a decision of the Administrative Appeals Tribunal dated 18 December 2020 (Judicial Review Application) under r 13.13(a) of the Rules on the basis that the Judicial Review Application had no reasonable prospects of success.
On 6 January 2025, the applicant lodged in this Court an application in a proceeding, accepted for filing on 9 January 2025, which sought an order pursuant to r 17.05 of the Rules to set aside the dismissal order made on 16 December 2024, commonly referred to as a reinstatement application (Reinstatement Application).
This judgment determines the Reinstatement Application.
BACKGROUND UP TO HEARING OF REINSTATEMENT APPLICATION ON 29 JANUARY 2025
Background up to lodging of Registrar Review Application in November 2024
Paragraphs 3 to 15 of the First Judgment set out a chronology of relevant events leading to the lodgement of the Registrar Review Application on 21 November 2024. To assist in understanding the present judgment, a short summary is as follows.
In March 2019, the applicant lodged an application for a subclass 500 student visa.
Following a refusal of the application by a delegate of the first respondent, an application by the applicant to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision, and a hearing before the Tribunal, on 18 December 2020 the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a student visa.
On 13 January 2021, the applicant lodged in this Court the Judicial Review Application, being an application seeking judicial review of the Tribunal’s decision dated 18 December 2020.
On 5 November 2024, there was a summary dismissal hearing before a registrar in respect of the Judicial Review Application. The applicant relied on grounds in a document titled “Proposed amended application” which was accepted for filing on 6 December 2024 (Amended Application). Following the hearing, and on the same day, the registrar made an order that the Judicial Review Application be summarily dismissed pursuant to r 13.13(a) of the Rules on the basis that the registrar was satisfied that the Judicial Review Application had no reasonable prospect of success. The registrar’s decision addressed the grounds in the Amended Application.
On 21 November 2024, the applicant lodged in this Court the Registrar Review Application pursuant to r 21.02 of the Rules. In light of the timeframe in r 21.02(1), the Review Application was lodged about 9 days out of time and the applicant required an extension of time.
Events between lodging of Registrar Review Application in November 2024 and hearing of application on 9 December 2024
Paragraphs 17 to 28 of the First Judgment set out a reasonably detailed description of events between the date of lodgement by the applicant of the Registrar Review Application and the hearing date in respect of the application on 9 December 2024. Since the events are important to the determination of this Reinstatement Application, parts of the description are repeated in the following paragraphs.
On 29 November 2024, the Court made the following orders:
1.The application for review lodged by the applicant on 21 November 2024, including any application for an extension of time under rule 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, is listed for hearing at 10:15 am on Monday 9 December 2024 before Judge Zipser.
2.The applicant may file and serve any submission or evidence in support of the application for review, and any application for an extension of time, by 2:00 pm on Wednesday 4 December 2024.
3.If the applicant files and serves any materials, the first respondent may file and serve any submission or evidence in reply by 2:00 pm on Friday 6 December 2024.
The applicant did not file any submission or evidence in support of the Registrar Review Application before the hearing on 9 December 2024.
At 7:19 pm on 5 December 2024, the applicant sent an email to the Court which stated:
Honourable Judge,
With reference to above and to your email below, please note that I am not feeling well and have some medical conditions (Chest infection & Hay fever). I have consulted doctor few days before and as per advice, I have done my chest x-ray as well. Doctor has seen the report and suggested to consult a specialist doctor in this regard as it requires further medical investigations. As per doctor’s referral, I will be consulting Dr Girish Patel (experienced Respiratory physician) on 30th January 2025 at 4:30pm.
Thus, because of my current medical condition, doctor suggested to take rest for at least 1 week and consult him again. For such reasons, I am not able to attend hearing on Monday 9th December 2024 as I am not physically and mentally fit to appear. I have attached herewith doctor’s medical leave letter and referral letter to specialist doctor. I hope your honour could understand my situation and allow time till 30th January 2025 (until I got my consultation done from specialist doctor).
Thank you for your time and kind consideration. Much appreciated.
Yours sincerely.
Ayesha Hameed
The email attached a medical certificate from Dr Amit Kshatriya, a general practitioner at a practice in Mays Hill, dated 5 December 2024 which stated:
Ayesha Hameed has a medical condition and will be unfit for work from 05/12/2024 to 13/12/2024 inclusive.
The email also attached a referral letter from Dr Kshatriya to Dr Girish Patel dated 5 December 2024 which stated:
Dear Girish,
Thank you for seeing Ayesha Hameed for an opinion and management.
Ayesha has seen me for her chest infection.
She has on and off symptoms for last few months
She needs to see you for this.
Could you please review and provide us with your opinion and management.
I have attached all relevant reports here with this letter.
Please feel free to contact me if you need further information about my patient.
Many thanks,
The referral letter included information suggesting the applicant attended a medical centre in Bankstown on 3 December 2024 to obtain a chest x-ray.
At 10:42 am on 6 December 2024, the solicitor for the first respondent sent an email to the Court, copied to the applicant, which stated in part:
Dear Associate
We refer to the applicant's email requesting an adjournment of the hearing listed for Monday 9 December 2024 at 10:15am before Judge Zipser.
The Minister respectfully opposes the adjournment request. Whilst we acknowledge that the applicant has provided a medical certificate, we consider that she has not outlined how her condition will prevent her from travelling to Court or effectively participating in the hearing .... Further, if the applicant is unable to travel to the Court due to her medical condition, she can seek leave of the Court to appear via Microsoft Teams.
…
At 12:12 pm on 6 December 2024, the Court sent an email to the applicant, copied to the first respondent’s solicitor, which stated:
Dear Ms Hameed
I refer to your email below which has been brought to the attention of Judge Zipser.
Your request for an adjournment is refused. The medical certificate and referral letter attached to your email do not establish that you are unable to attend the hearing on 9 December 2024. The hearing will proceed as scheduled on Monday 9 December 2024 at 10:15 am (AEDT) in Courtroom 1 at Garfield Barwick Commonwealth Law Courts Building, 1-3 George Street, Parramatta NSW.
As an alternative to appearing in person, his Honour has granted you permission to appear using the Webex link below:
[Webex link]
Sincerely…
The hearing on 9 December 2024 commenced at 10:24 am and concluded at 10:40 am. There was no appearance by or for the applicant, either in person or via Webex. Prior to the hearing, my associate phoned the applicant on the mobile number contained in the Registrar Review Application and in her email to the Court on 5 December 2024. The applicant did not answer the call.
Events following hearing on 9 December 2024
On 16 December 2024, the First Judgment was handed down and emailed to the parties. Paragraph 24 of the First Judgment identified inadequacies in the medical evidence on which the applicant relied in support of her adjournment request on 5 December 2024 as follows
(a) First, the medical evidence in support of the adjournment request was unsatisfactory. Among other things, the medical evidence did not indicate that the applicant had a medical condition or symptoms which prevented her from attending, or even made it difficult for her to attend, a hearing in Parramatta on 9 December 2024.
(b) Second, the applicant lives in Bankstown. She presumably attended Dr Kshatriya’s practice in Mays Hill on 5 December 2024 to obtain the medical certificate and referral letter. The applicant did not explain in her adjournment request why, if she was capable of travelling between Bankstown and Mays Hill on 5 December 2024, she was not fit to attend a hearing in Parramatta on 9 December 2024.
Paragraph 30 of the First Judgment stated:
If an event prevented the applicant from attending the hearing on 9 December 2024 and she is aggrieved that the Review Application was dismissed in her absence, pursuant to r 17.05 of the Rules, she may apply to the Court to set aside the dismissal order. However, if the applicant decides to file an application under r 17.05, she should file an accompanying affidavit which provides evidence explaining the circumstances which prevented her from attending the hearing. In the absence of a satisfactory explanation from the applicant, her conduct explained above may raise a question as to whether the Review Application involved an abuse by the applicant of the process of this Court.
On 6 January 2025, the applicant lodged the Reinstatement Application. The application seeks the following orders (as written):
1.The application for review of the decision of Registrar Cummings before Judge Zipser be reinstated and determined in accordance with the relevant laws.
2.Any other orders which the Honourable Court deems fit and just.
The Reinstatement Application was accompanied by an affidavit from the applicant dated 6 January 2025 in which the applicant stated:
1.I am the Applicant, and I am authorised to make this affidavit.
2.I understand that my application for review of the Registrar’s decision was heard by Judge Zipser after which the application was dismissed for non-appearance at the hearing on 9 December 2024.
3.During this period, I was unwell and had a chest infection. A medical certificate and x-ray reports were provided to the Registry regarding the same.
4.Due to my medical condition, I was unable to attend the hearing and evidence of the same is annexed and marked “AH1” and “AH2” respectively.
5.I seek for the Honourable Court to consider my circumstances and reinstate my application.
Annexures “AH1” and “AH2” are the same documents emailed to the Court by the applicant on 5 December 2024 in support of her request for an adjournment. The content of the documents are set out in paragraphs 14 and 15 above.
On 9 January 2025, the Reinstatement Application and accompanying affidavit were accepted for filing by the registry. On the same day, the Court made, and emailed to the parties, procedural orders including the following:
(a)The Reinstatement Application is listed for hearing on 29 January 2025
(b)The applicant is to file and serve the following by 14 January 2025:
(i)any further evidence on which she wishes to rely at the hearing; and
(ii)a written submission.
On 20 January 2025, the applicant filed a written submission. The applicant did not file any further evidence.
On 24 January 2025, the first respondent filed a written submission.
HEARING OF REINSTATEMENT APPLICATION ON 29 JANUARY 2025
At the hearing of the Reinstatement Application on 29 January 2025, the applicant appeared in person, assisted by an interpreter in the Urdu language. Sophie Edmondstone from Minter Ellison appeared for the first respondent.
At the commencement of the hearing, I explained to the applicant that she must persuade the Court that:
(a)she had an adequate excuse or reasonable explanation for not appearing at the hearing on 9 December 2024; and
(b)she had an arguable case, or arguable prospects of success, in relation to her application to the Court in November 2024 for review of a decision made by a registrar on 5 November 2024, which in turn required the applicant to persuade the Court that there was a possible jurisdictional error in the Tribunal’s decision dated 18 December 2020.
In relation to the task of persuading the Court that there was a possible jurisdictional error in the Tribunal’s decision, I directed the applicant’s attention to the Tribunal’s decision and explained the main categories of jurisdictional error.
I read the applicant’s affidavit accepted for filing on 9 January 2025. Ms Edmondstone did not wish to cross-examine the applicant. Ms Edmondstone tendered a court book (CB) which contained the Tribunal’s decision and documents before the Tribunal.
The applicant made submissions concerning why she did not appear at the hearing on 9 December 2024. She stated that a few days before 9 December 2024 she was shivering, she had a high fever, and she was unable to walk. She stated that she wanted to attend the hearing on 9 December 2024, but she could not attend because of the symptoms explained in the previous sentence. Her written submission filed on 20 January 2025 added that the applicant was unable to attend the hearing no 9 December 2024 because she was “suffering from a severe chest infection”.
In relation to whether the applicant had arguable prospects of success in relation to her application to the Court in November 2024, the applicant’s written submission filed on 9 January 2025 continued to rely on grounds in the Amended Application. At the hearing on 29 January 2025, I discussed these grounds with the applicant.
PRINCIPLES FOR REINSTATEMENT
Rule 17.05(2)(a) of the Rules states:
(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; …
In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7] Ryan J stated:
In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
•whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
•the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
•whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.
In FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50] the Full Court stated that the primary judge is required to consider “whether or not it was in the interests of justice to reinstate the applicant’s application”. The Full Court at [53] added that “the factors that are often considered are not mandatory relevant considerations but potential aspects of what is in the interests of justice in a particular case”. The Full Court at [60] stated that there was nothing in MZYEZ at [7] which was inconsistent with the Full Court’s approach.
In CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15) at [4] Mortimer J stated:
As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
CONSIDERATION
Whether adequate explanation or reasonable excuse for non-appearance at hearing in December 2024
For reasons explained in the First Judgment at [24], I considered that the medical evidence on which the applicant relied in support of her adjournment request on 5 December 2024 was unsatisfactory. The useful review of Federal Court authorities (NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 79; Singh v Minister for Immigration and Border Protection [2016] FCA 108; AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815; and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75) in Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25 at [83]-[90] concerning medical evidence provided in support of adjournment applications is consistent with my view that the medical evidence on which the applicant relies is unsatisfactory.
Despite the fact that the First Judgment at [24] put the applicant on notice that I considered the medical evidence unsatisfactory, the applicant has merely re-submitted the same medical evidence as part of the Reinstatement Application to explain why she did not appear at the hearing on 9 December 2024.
The applicant stated in oral submissions on 29 January 2025 that a few days before 9 December 2024 she was shivering, she had a high fever, and she was unable to walk. However, these symptoms are not referred to in either the medical evidence or the body of the applicant’s affidavit filed on 9 January 2025. If the applicant had any of these symptoms when she saw Dr Kshatriya on 5 December 2024, I would have expected Dr Kshatriya to refer to the symptoms in his medical certificate dated 5 December 2024 or in his letter to Dr Patel dated 5 December 2024. I am not persuaded that the applicant had these symptoms. Further, even if the applicant was shivering or had a high fever, that does not establish that she was unable to attend the hearing on 9 December 2024.
The applicant asserted in her written submission filed on 9 January 2025 that she was “suffering from a severe chest infection”. While I accept that the applicant had a chest infection on 5 December 2024, I am not persuaded that the applicant was unable to attend the hearing on 9 December 2024 because she had a chest infection.
Further, none of the applicant’s evidence addresses why she did not take up the offer, communicated to her in an email from the Court dated 6 December 2024, to appear at the hearing by video link. Even if the applicant was suffering from the symptoms she referred to in oral submissions on 29 January 2025, these symptoms would not have prevented her from attending the hearing by video link.
In conclusion, the applicant’s explanation for not appearing at the hearing on 9 December 2024 is unsatisfactory and inadequate. This consideration weighs against reinstatement.
Whether arguable case or arguable prospects of success on judicial review
In considering whether the applicant has an arguable case or arguable prospects of success on judicial review, it is appropriate to keep in mind that the applicant seeks to reinstate the Registrar Review Application, being an application to the Court, pursuant to r 21.02 of the Rules, for review of a decision of a registrar of this Court dated 5 November 2024 summarily dismissing, pursuant to r 13.13(a) of the Rules, the applicant’s application for judicial review of the Tribunal’s decision dated 18 December 2020. Further, since the Registrar Review Application was lodged about 9 days late, the applicant requires an extension of time.
Rule 13.13(a) of the Rules states:
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:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; …
Aided by Przyblowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [6]-[7], some principles concerning the test for summary dismissal are:
(a)The respondent as the moving party bears the onus of persuading the court that the application has no reasonable prospects of success.
(b)An application need not be hopeless or bound to fail for it to have no reasonable prospects of success.
(c)The determination of a summary dismissal application requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial.
(d)An application for summary dismissal must be determined according to its particular circumstances. The particular circumstances include the stage the proceedings have reached. In the present matter, the applicant was ordered on two occasions, on 29 November 2024 and 9 January 2025, to file evidence on which she wished to rely in the Court. She has neither filed evidence nor indicated that she wishes to file evidence. In the circumstances, the Court can assume that there is no further or additional evidence on which she wishes to rely.
(e)The discretion to summarily dismiss an application must be exercised with caution, given that it is an order made at a preliminary stage in proceedings and without the benefit of fully developed argument.
Where a registrar of the Court exercises a power, Part 21 of the Rules permits a dissatisfied party to apply for review by a judge of the exercise of power. Rule 21.04 states that the review “must proceed by way of a hearing de novo”.
In a context where the first respondent as the moving party in its summary dismissal application bore the onus of persuading the Court that the applicant’s judicial review application had no reasonable prospects of success, the question for the Court in the present matter in considering the Reinstatement Application appears to be whether, if the Registrar Review Application is reinstated, the applicant has arguable prospects of avoiding a summary dismissal of the Judicial Review Application. This question requires consideration of the grounds in the Amended Application.
Ground 1 of Amended Application: Ground 1 states:
1.The Tribunal’s decision is infected with jurisdictional error as the Tribunal did not afford procedural fairness and was unreasonable in its decision-making process.
Particulars
a. If the Tribunal exercised its discretion and procedural fairness at the time to allow the application to obtain a new confirmation of enrolment (COE) and rectify her enrolment, then the outcome of the Tribunal’s decision would have been different and favourable to the applicant.
b. The Tribunal should have discharged its duties and obligations by ensuring that the applicant understood the importance of being enrolled in a current course. If the tribunal explained this and allowed the applicant to obtain a current COE at the time, the outcome of the review would have been materially different.
In relation to particular (a), the Tribunal stated at [12]-[15]:
[12]Prior to hearing, the Tribunal obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). That record showed that the applicant was not currently enrolled in a course of study as required by cl.500.211. At hearing, that information was put to the applicant pursuant to section 359AA of the Act. The Tribunal explained to the applicant that the information in question was relevant because enrolment in a course of study was a mandatory criterion for the grant of a student visa. It also explained to the applicant that although the delegate had refused the applicant’s visa on the basis that she was not satisfied that the applicant genuinely intended to stay temporarily in Australia, the Tribunal could decide the case on a different basis, and that one such different basis would be the applicant’s lack of enrolment in a course of study. The Tribunal emphasised that enrolment in a course of study is a mandatory requirement for the grant of a student visa, and that the Tribunal had no power to dispense with it.
[13]The applicant was asked whether she wished to comment or respond, having been reminded that she was entitled to seek additional time in which to comment or respond if she wished to. She stated that she wished to respond orally, and did not seek additional time. She explained that she had been delayed from completing her studies by a medical condition. She said that her college had accepted this, but that her migration agent had not provided a copy of the medical certificate to the Department at the time she applied for her visa. She noted that the delegate had made mention of the applicant’s delays in completing her course (a Bachelor of Accounting), and intimated that she thought that this was the main reason why her application had been refused. She went on to explain that her enrolment had been cancelled by her college after her visa application was refused, because she held no student visa.
[14]The Tribunal stated that it had no reason to doubt the applicant’s evidence as to the reason for her delays in completing her studies, but pointed out that the fact remained that she was not currently enrolled in a course of study. The Tribunal then told the applicant that it proposed to change the determinative issue in this case from the issue of whether she genuinely intended to remain only temporarily in Australia to the issue of enrolment. The Tribunal asked the applicant if she wished to respond to or comment on that proposal.
[15]The applicant did respond. She repeated her explanation for the delays in her studies. She went on to add that she had paid all of her course fees, and stated that those fees had been refunded to her when her enrolment had been cancelled.
According to the Tribunal’s reasons in the above paragraph, the applicant neither asked the Tribunal for time to obtain a new confirmation of enrolment, nor indicated that she could obtain a new confirmation of enrolment if the Tribunal adjourned the hearing, nor expressed interest in obtaining a new confirmation of enrolment. In the circumstances, the Tribunal’s conduct in not adjourning the hearing was neither procedurally unfair nor legally unreasonable.
In relation to particular (b), the Tribunal’s duty or obligation to ensure that an applicant understands issues to be determined at a hearing is controlled by s 360(1) of the Migration Act 1958 (Cth) (Act) which states:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Cases such as SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1; and SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404 discuss the scope of the Tribunal’s duty or obligation under s 360(1) and the equivalent s 425(1).
On 23 April 2020, the Tribunal sent a letter to the applicant which stated in part:
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements …
Further, on 3 November 2020 the Tribunal sent a letter to the applicant which stated in part:
In addition, please provide the following information at least 7 days before the hearing date … :
1. A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
2. …
We may also assess whether you are enrolled in a registered course of study. Please note that not being enrolled in a registered course of study may be a reason, or part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the delegate.
I consider that the Tribunal, by its letters dated 23 April 2020 and 3 November 2020, notified the applicant that an issue arising in relation to the decision under review was whether the applicant was enrolled in a course of study.
The applicant added in paragraph 13(ii) of her written submission that “simply putting the applicant on notice about her enrolment is not sufficient to satisfy that the Tribunal has discharged its obligations and duties”, and the Tribunal was required to go a step further and “ensure that the applicant understands the reasons why the Tribunal may make an adverse decision”. I consider that the Tribunal satisfied its duty or obligation under s 360.
The applicant also contended in paragraph 13(ii) of her written submission that the Tribunal failed to comply with s 359AA of the Act “because simply putting the applicant on notice about her enrolment is not sufficient to satisfy that the Tribunal has discharged its obligations and duties”. The meaning of this contention is not clear. However, I consider that the Tribunal’s decision at [12] indicates that the Tribunal complied with its obligation under s 359A through the mechanism of s 359AA.
Ground 1 does not have reasonable prospects of success.
Ground 2 of Amended Application: Ground 2 states:
2.The Tribunal’s decision is infected with jurisdictional error as the Tribunal failed to consider the material before it when determining the student visa merits review application.
Particulars
a. The Tribunal failed to consider the reasons why the applicant’s explanation for the delays in her studies including her medical condition which were materially critical evidence to consider.
b. The Tribunal should have allowed the applicant to provide evidence of her medical condition on which basis she sought deferment of her studies and subsequently should have allowed the applicant to rectify her enrolment at the time.
In relation to particular (a), cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2) required as a time of decision criterion that “the applicant is enrolled in a course of study”. The applicant’s reasons for delays in her studies were not relevant to satisfaction of this criterion, and hence were irrelevant to the determinative issue on review.
In relation to particular (b), first, since evidence of the applicant’s medical condition was not relevant to whether or not she satisfied cl 500.211 and the applicant did not ask the Tribunal for time to provide the Tribunal with medical evidence, there could be no error by the Tribunal in not allowing time for the applicant to provide medical evidence to the Tribunal. Second, the applicant’s complaint that the Tribunal “should have allowed the applicant time to rectify her enrolment” is dealt with in paragraph 51 above.
Ground 2 does not have reasonable prospects of success.
Ground 3 of Amended Application: Ground 3 states:
3.If the Tribunal was considering the applicant’s enrolment as the sole determinative element to satisfy itself that the applicant meets the requirements of the student visa, then the Tribunal must have allowed time to obtain enrolment based on the principles of natural justice.
Particulars
a. The Tribunal did not consider any other factors or even the fact that the applicant can obtain a rectified current enrolment and COE when making a decision in relation to the review of the student visa application.
This ground appears to be the same, or substantially the same, as particular (a) in ground 1 and the second part of particular (b) in ground 2.
As stated above, from 23 April 2020 the Tribunal clearly put the applicant on notice that an issue arising in relation to the decision under review was whether she was enrolled in a course of study. The applicant had eight months between 23 April 2020 and 18 December 2020 to arrange enrolment in a course of study. It was neither unreasonable nor unfair for the Tribunal not to give the applicant additional time after the hearing on 18 December 2020 in a context where, as stated in paragraph 51 above, she neither asked the Tribunal for time to obtain a new confirmation of enrolment, indicated that she could obtain a new confirmation of enrolment if the Tribunal adjourned the hearing, nor expressed interest in obtaining a new confirmation of enrolment.
Ground 3 does not have reasonable prospects of success.
Conclusion: Since no ground in the Amended Application has reasonable prospects of success, the applicant does not have arguable or reasonable prospects of succeeding in the Registrar Review Application. This consideration weighs against reinstatement, since there is little or no utility in reinstating an application which does not have arguable or reasonable prospects of success.
Prejudice to first respondent
The first respondent states in a written submission that he would not face significant prejudice if the application were reinstated, but notes that reinstatement would cause some prejudice given the desirability of finality in administrative decisions. This consideration weighs neutrally in relation to reinstatement.
Conclusion
As stated above, first, the applicant’s explanation or excuse for not appearing at the hearing on 9 December 2024 is not reasonable or adequate. Second, the applicant does not have arguable or reasonable prospects of success in relation to the Reinstatement Application. In all of the circumstances, it is not in the interests of justice to reinstate the Reinstatement Application.
COSTS
Ms Edmondstone stated that, if the Reinstatement Application is dismissed, the first respondent sought an order that the applicant pay costs in the amount of $1,500, which amount was notably less than the first respondent’s solicitor/client costs. This amount appears reasonable taking into account the need to prepare for and attend a hearing in Parramatta. I will make an order in this amount.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 27 February 2025
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