Kaur v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1414
•29 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1414
File number(s): ADG 116 of 2025 Judgment of: JUDGE GERRARD Date of judgment: 29 August 2025 Catchwords: MIGRATION – Temporary Graduate (Class VC) Subclass 485 visa – application for review of a Registrar’s decision – application of the English language test requirement – where visa application not accompanied by evidence that applicant had sat English language test within three years before the day on which visa application made – where the applicant’s application was summarily dismissed – no reasonable prospects of success in the substantive application – application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254(1), 256(2)
Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), 21.01, 21.03, 21.04
Migration Regulations 1994 (Cth) Sch 2 cll 485.212, 485.212(1)(a), 485.311
Cases cited: AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44
Chen v Minister for Immigration [2004] FMCA 860
Da Costa Da Rocha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 206
EBW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 341
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 307
Nareddula v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 255
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission/s: 17 July 2025 Date of hearing: 12 August 2025 Place: Adelaide Applicants: The first applicant appeared in person with the assistance of a Punjabi interpreter Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 116 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARPREET KAUR
First Applicant
GURSEVAK SINGH
Second Applicant
AGAMPREET SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
29 AUGUST 2025
THE COURT ORDERS THAT:
1.The application made pursuant to r 21.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), seeking review of the decision of Judicial Registrar Cummings made on 13 June 2025, is dismissed.
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 GERRARD:
INTRODUCTION
The applicants seek review of a decision of Judicial Registrar Cummings (the Registrar) to summarily dismiss their application for judicial review (the substantive application) on 13 June 2025, pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules).
For the reasons set out below, the Court has found that the substantive application filed on 26 February 2025 does not have reasonable prospects of success. On that basis, the application for review of a Registrar’s decision (the review application) has been dismissed.
BACKGROUND
Ms Kaur (the applicant) is a citizen of India (Court Book (CB) 2-3).
On 9 November 2021, the applicant applied for a Temporary Graduate (Class VC) (Subclass 485) visa in the Graduate Work stream (the visa) (CB 1-20). The applicant’s husband and child were named as members of the applicant’s family unit in her application (second and third applicants) (CB 7-8). The applicant provided various documents in support of her application (CB 21-48).
In their application, the applicants appointed a registered migration agent as their authorised representative (CB 9-10).
On 26 October 2022, a delegate of the Minister refused to grant the applicants the visas (CB 59-64). The delegate was not satisfied that the applicant satisfied cl 485.212(1)(a)(i) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) as her visa application was not accompanied by evidence that she satisfied the English language test requirements (CB 60-61). The criterion in cl 485.212(1) relevantly requires that:
(1)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 delegate was therefore not satisfied that the second and third applicants met cl 485.311 as members of the applicant’s family unit (CB 63).
On 15 November 2022, the applicants applied to the Administrative Appeals Tribunal (as it then was) (the Tribunal) for review of the delegate’s decision (CB 65-72).
On 11 December 2024, the Tribunal invited the applicants, through their authorised representative, to attend a hearing scheduled for 3 January 2025 (CB 78-81). The Tribunal also invited the applicants to provide any documents they wished to rely upon by 27 December 2024 (CB 80).
On 31 December 2024 and 3 January 2025, the applicants’ representative provided the Tribunal with a ‘Response to hearing invitation’ as well as written submissions, previous Tribunal decisions they sought to rely upon, and evidence of the applicant’s International English Language Testing System (IELTS) test results (CB 82-106).
On 3 January 2025, the applicant attended the hearing with her representative (CB 108).
On 16 January 2025, the applicant’s representative provided the Tribunal with the applicant’s Pearson Test of English (PTE) academic test results (CB 111, 115-118).
On 3 February 2025, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (CB 122-126).
On 26 February 2025, the applicants lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth).
THE TRIBUNAL DECISION
The Minister has helpfully and accurately set out the key findings of the Tribunal at [9] and [10] of its written submissions filed on 17 July 2025, which the Court adopts:
[9] The Tribunal made the following findings:
(a)The applicant did not have a passport specified in IMMI 15/062 and cl 485.212(1)(b): CB 124, [12].
(b)The Tribunal appreciated how “painfully close” the applicant’s English test results were to the minimum score of 50 required under IMMI 15/062: CB 124, [16].
(c)In relation to the applicant’s test result on 27 June 2024 which did satisfy the visa requirements in terms of the required score, applying binding case law such as Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 132 (Shine), it found that that test result could not be taken into account for the purposes of cl 485.212(1)(a) as it was not undertaken in the three years before the visa application made in November 2021: CB 124-125, [17]-[19]. Contrary to the applicant’s contentions, the Tribunal found that there was no discretion in cl 485.212(1)(a).
[10]As the applicant did not meet cl 485.212(1), the Tribunal affirmed the delegate’s decision: CB 125, [20]-[23].
THE JUDICIAL REVIEW APPLICATION
In filing the substantive application on 26 February 2025 for judicial review of the Tribunal’s decision, the applicants advanced the following six grounds of review:
(a)Failing to consider evidence of the applicant’s “improved English language test results” and of the effect of the COVID-19 pandemic.
(b)Failing to consider her “compassionate or compelling circumstances”.
(c)Failing to provide procedural fairness.
(d)Failing to exercise its “discretion under cl 485.212(1)(a)” to consider the more updated English language test results.
(e)Relying upon irrelevant or outdated material, namely, the applicant’s past English test results.
(f)Giving illogical or unreasonable reasons for its findings.
The Court accepts as accurate the Minister’s submission (in written submissions dated 14 May 2025) that:
…the applicant’s central contention can be summarised as follows: did the Tribunal have the discretion to consider an English test result which was achieved after the visa application was lodged for the purposes of cl 485.212(1)(a)?
On 13 June 2025, the matter came before the Registrar and orders were made that day as follows:
(1)The name of the first respondent be amended to Minister for Immigration and Citizenship.
(2)The application for judicial review be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
(3)The first and second applicants pay the first respondent’s costs fixed in the amount of $4,189.38.
THE REGISTRAR REVIEW APPLICATION
On 18 June 2025, the applicants filed an application for review of the Registrar’s decision made on 13 June 2025.
In that review application, the applicants raised three grounds that largely reformulate those in the substantive application. The applicants sought review of orders 2 and 3, and sought that the following orders be made instead:
1.That the order made on 13 June 2025 summarily dismissing the application for judicial review pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 be set aside.
2.That the costs order made on 13 June 2025 requiring the first and second applicants to pay the first respondent’s costs fixed in the amount of $4,189.38 be set aside.
3.That the matter be remitted to the Federal Circuit and Family Court of Australia for hearing and determination on the merits.
4.In the alternative, that the matter be remitted to a different judicial officer for reconsideration of the summary dismissal application.
5.That the first respondent pay the applicants’ costs of this application for review.
The hearing of the review application was held on 12 August 2025.
The materials before the Court include:
(a)the application for judicial review filed on 26 February 2025;
(b)the affidavit of Harpreet Kaur affirmed on 24 February 2025 and filed on 26 February 2025, annexing a copy of the Tribunal’s decision;
(c)a Court Book numbering 126 pages;
(d)the application for review of a Registrar’s decision filed on 18 June 2025;
(e)written submissions filed by the applicant on 30 May 2025;
(f)written submissions relating to the substantive application, filed by the Minister on 14 May 2025; and
(g)written submissions relating to the review application, filed by the Minister on 17 July 2025.
CONSIDERATION
The issue before the Court is whether it should set aside the orders made by the Registrar on 13 June 2025. In doing so, the Court accepts the Minister’s submissions that the following principles are well settled:
(a)The combined effect of s 254(1) of the Federal Circuit and Family Court of Australia Act 2021 and r 21.01 of the Rules is that the Registrar is delegated the power to summarily dismiss proceedings under r 13.13(a) if the Registrar is satisfied that the applicant does not have reasonable prospects of success.
(b)An applicant may apply for review of a Registrar’s decision under r 21.03. Such a review is to be by way of a hearing de novo (r 21.04). As such, this Court is to consider the Minister’s summary dismissal application afresh.
(c)On review, the Court may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised (s 256(2); EBW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 341).
The principles in respect of a summary dismissal application are also well settled and conveniently summarised by her Honour Deputy Chief Judge Mercuri in AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 at [36]-[37]:
It is well settled that in considering an application for summary dismissal either under rule 13.13(a) of the Rules or under section 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), it is necessary to establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim. It is not necessary for the court to be satisfied that the applicant is bound to fail.
Nonetheless, 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 evidence and argument. However, what is required is a critical examination of the available material to determine whether there is a real question of law of fact which should be decided at trial. The onus is on the party seeking the summary dismissal to persuade the court that the applicant has no reasonable prospects of success.
As outlined above, the applicants sought six particularised grounds of review in their substantive application, and three grounds in their review application which largely reformulated those six original grounds.
The grounds within the substantive application variously asserted a failure by the Tribunal to consider the effect of the pandemic, the applicants’ compassionate circumstances, the Department’s policy, any study history and other case law, the alleged denial of procedural fairness, and a failure to exercise the discretion to waive the statutory requirements.
In respect of these grounds, the Minister contended that authorities from this Court and the Federal Court have consistently and repeatedly emphasised there is no discretion to waive cl 485.212(1), whether for compassionate reasons or any other reason (Da Costa Da Rocha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 206 at [56]; Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 307 at [26] and [30]; Nareddula v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 255 at [48] (Nareddula). Thus, the grounds asserted by the applicant are, in the Minister’s submission, without merit.
At the hearing of the review application, the applicant submitted that when she appeared at the Tribunal hearing, she had achieved the necessary results in her PTE test but could not do the test prior to her visa application as there were no dates available due to the COVID-19 pandemic.
The Minister contended that the Tribunal made the only decision that it could in circumstances where the applicant could not meet the relevant English language proficiency criterion. That criterion required the visa application to be accompanied by an English language test result that had been achieved in the three-year period leading up to the visa application. In other words, the visa criterion is backward-looking and cannot be satisfied by a test result achieved after the application. The Minister submitted that there was no discretion for the Tribunal to waive that criterion. The Minister also submitted that even something as unprecedented as the COVID-19 pandemic could not empower the Tribunal to waive the visa criteria. It was for those reasons, the Minister submitted, that the application in this Court had no reasonable prospects of success.
The Minister’s overarching position in written submissions was that there are two independent bases for the Court to conclude that summary dismissal is appropriate. Firstly, the applicant could not satisfy a binary criterion in cl 485.212 which the Tribunal had no discretion to waive. The Tribunal made the only decision open to it and its decision would inevitably have been the same regardless of any asserted error. Secondly, because cl 485.212 required the applicant to attach evidence of an English language test result within three years of the visa application, the applicant can now never satisfy the criterion. This means these proceedings are futile in any event. Where proceedings are futile, that in itself is a sound basis for the Court to dismiss the proceedings on a summary basis (Chen v Minister for Immigration [2004] FMCA 860 at [8] and [17]).
The Court accepts the Minister’s submissions. As set out in the authorities referred to above, cl 485.212 imposes mandatory criteria for the grant of the visa. The Tribunal did not have the discretion to waive the statutory criteria. Those criteria required the applicant to provide evidence that she had satisfied the requisite scores in a test within the three years leading up to the visa application. That specific criterion could not be satisfied by evidence of a test score achieved after the visa application. As found by Judge J Young in Nareddula at [48]:
The reasons why the applicant was unable to satisfy the requirements of cl 485.212(1)(a) of the Regulations, including that he was unable to sit the test prior to December 2021 due to COVID-19 restrictions, the fact that the first test appointment on 2 September 2021 was cancelled on 18 August 2021 due to COVID-19 restrictions, and that he could not subsequently reschedule the appointment prior to December 2021 due to COVID-19 restrictions, are not relevant in the absence of any discretion to grant the Visa: Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 307 at [26] and [30] (Kumar).
Judge J Young’s observations are clearly apposite in this matter. The difficulty for the applicant is that each of the applicant’s grounds is premised on the flawed basis that the Tribunal had a discretion to consider matters such as the practical effect of COVID-19 restrictions, the applicant’s compelling and compassionate circumstances, and the test results achieved after the visa application. The Tribunal simply did not have that discretion. As the applicant had not (and indeed could not have) provided evidence of an applicable test score, she could not meet a mandatory criterion for the visa. The Court accepts that the Tribunal made the only decision which was available to it.
The Court also accepts the Minister’s submission that the application before this Court is ultimately futile because the applicant is now unable to ever satisfy the relevant criteria.
For the above reasons, the Court is satisfied that the applicants have no reasonable prospects of successfully prosecuting the application.
The Registrar’s Costs Order
To the extent the applicant contended the costs order was excessive, the Minister submitted the amount of costs fixed by the Registrar was simply the fixed scale amount within Schedule 2 of the Rules. The applicant did not make any meaningful submission as to why the Registrar’s costs order should be displaced. As properly observed by the Registrar, the work undertaken by the Minister in respect of the proceedings before him was sufficient to justify the amount claimed. In the circumstances, the Court finds the order for costs made by the Registrar was appropriate and should not be disturbed.
CONCLUSION
In circumstances where the applicant’s grounds of review in the substantive application do not have reasonable prospects of success, the Court is not satisfied that it is in the interests of the administration of justice to reinstate the application.
Accordingly, the application for review of a Registrar’s decision is dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 29 August 2025
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