Kaur v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1595
•1 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1595
File number(s): SYG 399 of 2024 Judgment of: JUDGE ZIPSER Date of judgment: 1 October 2025 Catchwords: MIGRATION – application for reinstatement – where judicial review application dismissed following non-attendance by applicant at hearing – whether applicant provided satisfactory explanation for failing to appear at hearing - whether judicial review application has reasonable prospects of success – application dismissed Legislation: Migration Act1958 (Cth) s 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 r 24.04
Migration Regulations 1994 (Cth) cl 500.212 of Sch 2
Cases cited: Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 424; 164 ALD 258
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
FBS18 v Minister for Home Affairs [2019] FCAFC 196
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 176
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 29 September 2025 Place: Parramatta Applicant: In person Solicitor for the Respondents: Mr J Pattinson (Mills Oakley) ORDERS
SYG 399 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LOVEJOT KAUR
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
1 OCTOBER 2025
THE COURT ORDERS THAT:
1.The interlocutory application accepted for filing on 18 September 2025 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $700.
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 ZIPSER
This is my second judgment in this matter. In my first judgment (see Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1403 published on 27 August 2025 (First Judgment)), I made orders dismissing the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal dated 12 February 2024 (Judicial Review Application) pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules) because she did not appear at the final hearing on 26 August 2025.
On 17 September 2025, the applicant lodged in this Court an interlocutory application, accepted for filing on 18 September 2025, which sought an order pursuant to r 24.04(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 Rules) to set aside the dismissal order made on 27 August 2025, commonly referred to as a reinstatement application (Reinstatement Application).
This judgment determines the Reinstatement Application.
PROCEDURAL HISTORY
Background up to hearing of Judicial Review Application in August 2025
Paragraphs 3 to 19 of the First Judgment set out a chronology of relevant events up to the hearing of the Judicial Review Application on 26 August 2025. To assist in understanding the present judgment, a short summary is as follows.
In January 2021, the applicant applied for a subclass 500 student visa. Following a refusal of the application by a delegate of the first respondent, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision. On 12 February 2024, following a hearing before the Tribunal, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a student visa.
On 8 March 2024, the applicant lodged in this Court the Judicial Review Application.
On 10 July 2025, the registry of the Court sent an email to the parties stating the matter was listed for hearing on 26 August 2025.
On 19 August 2025, my associate sent an email to the parties, reminding them of the date, time and place of the hearing.
On 26 August 2025, there was a hearing before me. The hearing commenced at 10:20 am and concluded shortly after 10:30 am. The applicant did not appear at the hearing. The matter was called outside the court room prior to the commencement of the hearing. Around 10:15 am my associate phoned the applicant. The applicant answered and stated that she was unable to attend the hearing as she was “pregnant and on bed rest”. The applicant had not previously communicated to the Court:
(a)that she did not plan to attend the hearing; or
(b)a request to adjourn the hearing.
On application of the first respondent’s solicitor, I agreed to dismiss the application under r 13.06(1) of the 2021 Rules.
Events following hearing on 26 August 2025
On 27 August 2025, the First Judgment was handed down and emailed to the parties.
Paragraphs 20 and 21 of the First Judgment stated with reference to the 2021 Rules:
20. If an event prevented the applicant from attending the hearing on 26 August 2025 and she is aggrieved that the 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 and thereby re-instate the proceeding. If the applicant files and serves an application under r 17.05, she should file and serve an accompanying affidavit which provides evidence explaining the circumstances which prevented her from attending the hearing on 26 August 2025. In the absence of a satisfactory explanation from the applicant, a question may arise as to whether her conduct involves an abuse by the applicant of the process of the Court.
21. If the applicant is genuinely aggrieved that the application was dismissed in her absence and she files an application under r 17.05:
a) She should also file and serve a written submission which seeks to identify a jurisdictional error in the Tribunal’s decision. If the Court is not persuaded there is a jurisdictional error in the Tribunal’s decision, there may be no utility in re-instating the proceeding.
b) The Court will endeavour to list the re-instatement application promptly for hearing. The applicant must attend the hearing.
On 1 September 2025, the 2021 Rules were replaced by the 2025 Rules. Under the 2025 Rules, applications for reinstatement are made pursuant to r 24.04(a).
On 17 September 2025, the applicant lodged the Reinstatement Application. The application seeks the following orders (as written):
1.I am seeking a review of my application
2.The orders made by the honourable Judge Zipser be reviewed and the matter be re-instead.
3.I am filing the affidavit with reason of non-attending with the application.
The Reinstatement Application was accompanied by an affidavit from the applicant dated 17 September 2025 (Explanation Affidavit) in which she stated:
…
4.On 27 August 2025 my application was dismissed as I could not attend the hearing.
5.I was pregnant and my health deteriorated in the last days of my pregnancy.
6.On the day of hearing, I was suffering from severe nausea and vomiting.
7.I was on medication for the same reason.
8.I explained the same reason to the Honourable Judge, when I was called over the phone.
9.I came back from the hospital on 5 September 2025 and since then I am regularly visiting hospital as my child was not feeding properly and there were some other concerns.
10.On 14 September 2025 the thing settled and I pursued my application.
…
On 19 September 2025, the Court made the following procedural orders:
1.The applicant's interlocutory application (Application) accepted for filing on 18 September 2025 is listed for hearing at 10:15 am on 29 September 2025 before Judge Zipser.
2.The applicant is to file and serve any further materials in support of the Application by 10 am on 24 September 2025.
3.The first respondent may file and serve any materials in reply by 10 am on 26 September 2025.
The applicant did not file any further materials in support of the Reinstatement Application prior to the hearing on 29 September 2025.
HEARING OF REINSTATEMENT APPLICATION ON 29 SEPTEMBER 2025
At the hearing of the Reinstatement Application on 29 September 2025, the applicant appeared in person unrepresented. Thomas Pattinson from Mills Oakley appeared for the first respondent.
The applicant brought no documents concerning the Reinstatement Application to the hearing. At the start of the hearing, my associate gave the applicant copies of the Reinstatement Application, the Explanation Affidavit, another affidavit lodged by the applicant on 17 September 2025 which contained proposed errors in the Tribunal’s decision (Errors Affidavit), and the Tribunal’s decision dated 12 February 2024.
Mr Pattinson tendered a Court Book which contained the Tribunal’s decision and documents before the Tribunal.
I read the applicant’s two affidavits lodged on 17 September 2025. The applicant stated at the hearing that a lawyer named Balgit helped her prepare the affidavits.
I explained to the applicant that she must persuade the Court:
(a)she had a satisfactory explanation for not appearing at the hearing on 26 August 2025; and
(b)she had an arguable case, or arguable prospects of success, in relation to her application to the Court in March 2024 for judicial review of the Tribunal’s decision.
In relation to whether the applicant had a satisfactory explanation for not appearing at the hearing on 26 August 2025, I expressed a preliminary view to the applicant that the Explanation Affidavit contained insufficient information. I invited the applicant to give additional evidence under oath. The applicant took up this opportunity. In the witness box, the applicant stated:
(a)Her baby was due to be born on 12 September 2025, but arrived early on 3 September.
(b)The applicant began to experience severe nausea and vomiting from the third month of pregnancy. She took medication to alleviate the nausea and vomiting but sometimes the medication was not effective.
(c)She intended to attend the hearing on 26 August 2025. But, when she woke up that morning, she experienced nausea and vomiting and the medication did not work.
(d)On the morning of 26 August 2025, a reason she did not contact the Court or my chambers to explain that she was unable to attend the hearing was because she did not know how to contact the Court or my chambers.
The applicant and Mr Pattinson made closing oral submissions. I address the submissions below.
PRINCIPLES FOR REINSTATEMENT
Rule 24.04(a) of the 2025 Rules states:
The Court may vary or set aside a judgment or order after it has been entered if:
(a) it was made in absence of a party; or …
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 on 26 August 2025
I consider the applicant’s explanation for not attending the hearing on 26 August 2025 is satisfactory.
It would have been preferable if the applicant had contacted my chambers on the morning of 26 August 2025 when she realised that she was too ill to attend the hearing. However, if a person, in the week before giving birth, wakes up on the morning of a court hearing feeling nauseous, I accept that their illness may temporarily distract them from contacting the court.
Whether arguable case or arguable prospects of success on judicial review
I wrote in paragraph 21 of the First Judgement that if the applicant applies to reinstate the proceeding:
She should also file and serve a written submission which seeks to identify a jurisdictional error in the Tribunal’s decision. If the Court is not persuaded there is a jurisdictional error in the Tribunal’s decision, there may be no utility in re-instating the proceeding.
Hence, the applicant was on notice of the importance of identifying a jurisdictional error in the Tribunal’s decision. The Reinstatement Application was accompanied by the Errors Affidavit which contains a list of asserted errors in the Tribunal’s decision. Most of the asserted errors are copied from the grounds in the Judicial Review Application. In the following paragraphs, I address the grounds in the Judicial Review Application, then the additional grounds in the Errors Affidavit, and then two matters raised by the applicant at the hearing on 29 September 2025.
Grounds in Judicial Review Application
Grounds 1, 2 and 4
It is asserted in ground 1 that “the Tribunal made an error of law and jurisdiction in affirming the decision under review”. It is asserted in ground 2 that “the Tribunal misconstrued its statutory task or constructively failed to exercise jurisdiction by failing to address cl 500.212 of Schedule 2 of Migration Act”. It is asserted in ground 4 that “the Tribunal made an error in applying the Direction No 69”.
As stated by the Tribunal in its decision at [7], “the issue in the present case is whether the applicant meets the requirements of cl 500.212”. As stated by the Tribunal at [9], in considering whether the applicant satisfied cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth), the Tribunal must have regard to Direction No 69 titled “Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications” made under s 499 of the Migration Act1958 (Cth) (Direction 69).
It is clear from the Tribunal’s decision that it addressed cl 500.212 and, in undertaking this task, had regard to Direction 69. The remaining assertions in grounds 1, 2 and 4 are unparticularised. A “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 176 at [37].
Grounds 1, 2 and 4 do not identify an “arguable case on judicial review”: CAL15 at [4].
Ground 3
It is stated in ground 3 that “the Tribunal made an error of judgment in failing to consider the significant difference between the economies of India and Australia and how still with the lower income in India one can still support a healthy lifestyle in the country”.
Based on materials in the Court Book, the applicant did not make a submission to the Tribunal in relation to the subject matter of ground 3. The Tribunal did not make a finding in relation to any “difference between the economies of India and Australia”. The applicant’s complaint does not appear to relate to any submission by the applicant to the Tribunal or finding by the Tribunal.
This ground does not identify an arguable case on judicial review.
Ground 5
It is stated in ground 5 that “in paragraph 42 the Tribunal failed to consider my statements and oral evidence”. The Tribunal at [42], in the course of considering the value of the applicant’s courses for her future (a matter required to be considered by Direction 69), reviewed the applicant’s evidence. Since the Tribunal clearly considered evidence of the applicant at [42], ground 5 does not identify an arguable case on judicial review.
Ground 6
It is stated in ground 6 that “in paragraph 32 the Tribunal made a false assumption that my husband has significant assets in Australia”. The Tribunal stated at [32]:
The applicant stated that she has no assets in Australia. I am prepared to accept that, but note that her answer does not necessarily apply to her husband. The applicant stated at hearing that she has been working whilst in Australia: she has been working in aged care and earning approximately $1,400 per month.
The Tribunal did not make a finding in relation to assets held by the applicant’s husband. It follows that the Tribunal did not assume that the “husband has significant assets in Australia”. This ground does not identify an arguable case of judicial review.
Additional grounds in Errors Affidavit
It is stated in paragraph 11 that “the AAT member failed to consider the lower cost of living in India as compared to Australia which justifies the income gap”. This is a repetition of ground 3 in the Judicial Review Application.
It is stated in paragraph 16 that the Tribunal “ignored the fact” that “at the time of AAT decision [the applicant] was studying and making significant progress in [her] course”. The Tribunal at [18]-[20] and [35] considered the applicant’s academic progress. It follows that the Tribunal did not ignore the applicant’s studies and academic progress.
Nothing in the Errors Affidavit identifies an arguable case on judicial review.
Two matters raised by applicant at hearing
The Tribunal at [39] stated that the applicant and her husband “married on 15 December 2019”. The applicant stated at the hearing on 29 September 2025 that she and her husband married on 13 December 2020, and so the Tribunal made a mistake of fact. However, first, in the absence of a transcript of the hearing before the Tribunal, I am not persuaded that the Tribunal erroneously recorded this part of the applicant’s oral evidence. Second, even if the Tribunal made a mistake of fact, a mere factual error is not a jurisdictional error: see for example, Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 424: 164 ALD 258 at [15]-[19].
The Tribunal at [23] stated that “I find that the applicant’s relationship with [her parents in India] gives her some personal ties to India, but I do not consider that those ties alone give her any strong incentive to return to that country once she has finished her studies in Australia”. The applicant stated at the hearing in this Court that she had personal ties to India which provided an incentive for her to return to India. Although the applicant disagreed with the finding at [23] that her personal ties did not give her “any strong incentive to return to” India, she could not identify an error in the Tribunal’s finding.
Prejudice to first respondent
Mr Pattinson did not claim that the first respondent would suffer prejudice if the Judicial Review Application is reinstated.
Conclusion
The applicant provided a satisfactory explanation for not appearing at the hearing on 26 August 2025. However, the applicant has not identified an arguable case of jurisdictional error in the Tribunal’s decision. As stated in CAL15 at [14], “it is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case”. To similar effect, in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18], North J stated in the context of an application to reinstate an appeal that, if the appeal has no reasonable chance of success, “there is no purpose in reinstatement”.
In all of the circumstances, it is not in the interests of justice to reinstate the Judicial Review Application.
COSTS
Mr Pattinson stated that, if the Reinstatement Application is dismissed, the first respondent sought an order that the applicant pay the first respondent’s costs in the amount of $700, which was notably less than the first respondent’s solicitor/client costs. This amount is reasonable. I will make an order in this amount.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 1 October 2025
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