Khan v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 262
•4 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 262
File number(s): MLG 3218 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 4 March 2025 Catchwords: MIGRATION – Student visa – Application for review of Registrar’s decision – Summary dismissal- Arguable claim of jurisdictional error- Application for an extension of time - Rule 21.02(2) – Extension granted - Review allowed – Application for judicial review reinstated. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 256(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth), rr 13.13, 13.13(a), 21.02(2)(a), 21.03, 21.04(1)
Migration Regulations 1994 (Cth), Sch 2, cls 500.211, 500.211(a), 500.214
Cases cited: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Bhandari v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 93
Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25
Chikweu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1478
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] HCA 176
Mehra v Minister for Immigration and Multicultural Affairs [2024] FedFamC2G 1105
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 605
Spencer v The Commonwealth (2010) 241 CLR 118 [2010] HCA 28
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of last submission/s: 19 December 2024 and 18 February 2025 Date of hearing: 19 December 2024 and 18 February 2025 Place: Melbourne and Perth Solicitor for the Applicants The first applicant appeared self-represented Solicitor for the Respondents Mr R O’Shannessy (Mills Oakley) ORDERS
MLG 3218 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD IMRAN KHAN
First Applicant
SARA USMANI
Second Applicant
ZARA KHAN (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
4 MARCH 2025
THE COURT ORDERS THAT:
1.The time within which to bring the applicants’ application for review pursuant to r 21.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules 2021 (Cth) is extended to 13 December 2024;
2.The application for review of the decision of the Registrar made 3 December 2024 is allowed;
3.Orders 3 and 4 of the orders made by the Registrar on 3 December 2024 be set aside;
4.The application for judicial review filed 23 September 2019 is reinstated and is to be listed for final hearing on a date to be fixed; and
5.The applicants’ costs of the application before the Registrar and this review application, if any, be the applicants’ costs in the proceeding.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CORBETT
The applicants seek review of a decision of a Registrar of the Court made on 3 December 2024. The Registrar ordered that the applicants’ application for judicial review filed 23 September 2019 be summarily dismissed under r 13.13(a) of Federal Circuit and Family Court of Australia(Division 2) (General Federal Law Rules) 2021 (Cth) (Rules).
On 13 December 2024 the applicants filed an application for review under s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Review Application). Pursuant to r 21.02 of the Rules, an application for review of the exercise of power by a Registrar must be made within seven days. The decision to dismiss by the Registrar was made on 3 December 2024.
The Review Application was not made within the time prescribed by the Rules. Rule 21.02(2) permits the Court to extend the time prescribed by r 21.02 on any terms that the Court thinks fit.
The time within which to bring the Review Application will be extended pursuant to r 21.02(2) of the Rules for the reasons that follow. The Review Application will also be allowed but not for the reasons articulated by the applicants. Orders 3 and 4 of the orders made by the Registrar on 3 December 2024 will be set aside and the application for judicial review is reinstated and to be listed for a final hearing on a date to be fixed.
References in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court on 18 December 2024 and marked exhibit “R1”.
BACKGROUND
The first applicant is a citizen of Pakistan. He arrived in Australia on 20 February 2009 as the holder of a Student (TU 572) visa and is the primary applicant of this application. The second, third and fourth applicants are the wife and children of the first applicant.
On 11 March 2018, the first applicant applied for a further Student visa (Class TU) (Subclass 500) (visa) to complete a Diploma of Project Management at the Central Melbourne Institute. The second, third and fourth applicants applied for visas as dependent members of the first applicant’s family unit.
Accompanying the application for the visa was a letter of offer from the Central Melbourne Institute dated 9 February 2018, offering the first applicant a place as an international student with enrolment commencing on 15 April 2018. The letter of offer said:
Take the time to carefully read through this document. To accept this offer, please sign and date the Student Written Agreement and return to Central Melbourne Institute’s head office in person or by email (document must be signed and scanned) along with the initial deposit as outlined within the agreement. Upon receipt, CMI will issue you with an electronic Confirmation of Enrolment (eCoE) as proof that you have been enrolled in a course. When you have your eCoE, you may apply for or renew your student Visa if required.
…Failure to commence your studies on agreed start date may result in CMI cancelling your eCoE due to non-commencement of studies as per legislative requirements.
On 24 April 2018, a delegate of the first respondent (Minister) refused to grant the visa on the grounds that the first applicant did not intend to genuinely stay temporarily in Australia as a student.
On 13 May 2018, the applicants applied to review the delegate’s decision with the Tribunal.
On 7 August 2019, the Tribunal invited the applicants to provide information that confirmed that the first applicant was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student (s 359 Invitation).
On 19 August 2019, the applicants provided a response to the s 359 Invitation. Attached to the response was a further letter of offer from the Central Melbourne Institute dated 15 August 2019 that offered the first applicant a place in a Diploma of Project Management course commencing on 14 September 2019. The letter was in the same terms as the previous offer, save for the date of commencement of the Diploma course which was changed to 14 September 2019.
The August letter of offer enclosed with the response was not signed by the first applicant and there was no evidence that the offer was accepted by the first applicant. The s 359 Invitation included the following question:
Does the main applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?
The first applicant’s answer to that question was: No.
On 23 August 2019, the applicants were invited to attend a hearing to give evidence and present arguments to the Tribunal, including an opportunity to provide all documents which they intended to rely on to establish that they meet the criteria for the visa. The letter also said:
In addition please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in clause 500.111 and as is required by clause 500.211 (a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
The applicants did not provide a current Confirmation of Enrolment to the Tribunal but instead, sought to rely on the unsigned letter of offer dated 15 August 2019.
A hearing took place at the Tribunal on 9 September 2019. The applicants appeared in person. The Tribunal gave oral reasons for its decision that day, dismissing the application for review and affirming the decision of the delegate.
On 11 November 2019 the Tribunal delivered a written statement of decision and reasons (Decision) (CB 189-191).
TRIBUNAL DECISION
The Decision was brief. The Tribunal set out the procedural history of the application for review, the criteria for assessment of a subclass 500 student visa and identified the issues to be determined.
At paragraph [7] of the Decision, the Tribunal identified the relevant issues as follows (CB 190 [7]):
The issue in the present case is whether the applicant is enrolled in a course of study as required for the grant of a student visa. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study, clause 500.211 (a). Course of study is relevantly defined in clause 500.111 of the Regulations as a full-time registered course. Registered course as defined in the regulations as a course of education or training provided by an institution, body or person that is registered under the Education Services for Overseas Student Act 2000 to provide the course to overseas students.
At paragraph [8] of the Decision, the Tribunal said (CB 190 [8]):
On 23 August 2019 a written invitation to attend today’s hearing was sent to Mr Khan. In that invitation he was requested to provide evidence of enrolment in a full-time registered course to the Tribunal at least seven days before today’s hearing. Such evidence has not been provided. The Tribunal does note there is evidence on the file of a student letter of offer and acceptance agreement with Central Melbourne Institute. The document quite clearly sets out that an offer has been made to Mr Khan to study and that he may accept such offer. However in Mr Khan’s evidence at the hearing he confirmed that he does not have current confirmation of enrolment or a letter evidencing current enrolment.
At paragraph [10], the Tribunal said (CB 191 [10]):
In his sworn evidence before the tribunal today Mr Khan confirmed in his evidence that he was advised by his education provider that if the outcome of this application is successful then he will be provided with his confirmation of enrolment. Unfortunately that information provided by the education provider is incorrect. A review applicant must provide current evidence of enrolment at the date of decision.
The Tribunal then found that the criteria for the grant of a Student (Subclass 500) visa were not met. The Tribunal affirmed the delegate’s decision not to grant the applicants the visa.
On 23 September 2019, the applicants filed an application in this Court seeking judicial review pursuant to s 476 of the Act. The application for judicial review was supported by an affidavit affirmed by the first applicant on the same date.
PROCEEDINGS IN THIS COURT
The application for judicial review contained two grounds. They were (verbatim):
(1)AAT didn’t review my decision what has been made by immigration. The member didn’t go through the reason of refusal made by immigration department.
(2)I presented my letter of offer which has been offered to me by College they (AAT) didn’t accept that.
By an amended response filed with the Court on 31 October 2024, the Minister sought summary dismissal of the applicants’ application for judicial review on the grounds that the application has no reasonable prospects of success.
The Minister’s application for summary dismissal was listed before and heard by a Registrar of this Court on 3 December 2024. The Registrar ordered the summary dismissal of the application for judicial review and ordered that the applicants pay the Minister’s costs fixed in the sum of $4,000.00.
The applicants filed the Review Application on 12 December 2024.
The hearing of the Review Application was heard by this Court at Melbourne on 18 December 2024. The first applicant appeared self-represented and Mr O’Shannessy, solicitor, appeared for the Minister.
The parties made submissions at the hearing and the Court reserved its decision on the Review Application to consider the respective submissions.
On 20 December 2024, the Court became aware of a decision published on 18 December 2024 in Chikweu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1478 per Feutrill J (Chikweu). That decision was not mentioned in submissions and was not available to the Registrar at the time of ordering summary dismissal of the application for judicial review.
The Court contacted the parties and listed the matter for further hearing and submissions before this Court at Perth via video link on 18 February 2025.
On 18 February 2025, the first applicant appeared self-represented and Mr O’Shannessy appeared for the Minister.
EXTENSION OF TIME
The Review Application was not filed within seven days of the Registrar’s exercise of power to summarily dismiss the application for judicial review. The applicants have not formally provided an explanation for their failure to lodge an application within time, nor an affidavit explaining the delay or why an extension of time should be granted pursuant to r 21.02(2)(a) of the Rules. From the bar table at the hearing of the Review Application, the first applicant said that he did not receive a letter from the Court telling him that he must file the Review Application within seven days.
The principles upon which an extension of time may be granted by a Court undertaking judicial review of administrative decisions were stated in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] HCA 176 at 348-9 per Wilcox J (Hunter Valley) and confirmed by the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [12] and [13] (Tu’uta Katoa). The factors that may be considered are not limited.
In this case, the delay in filing the Review Application was only a matter of a few days. Mr O’Shannessy for the Minister could not point to any prejudice suffered by the Minister if an extension of time was to be granted. However, the mere absence of prejudice alone is not a sufficient reason to grant an extension of time (see Hunter Valley at 349). There is also no onus upon the Court to inform the applicants of the time limits prescribed by the Rules. It is a matter for litigants themselves to ensure that they are aware of their rights of review and the applicable time limits. Ignorance is no excuse (see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]). If it were not for the fact that the delay was minimal, then the absence of a proper explanation for the delay would be fatal to the Review Application and the discretion to grant an extension of time would not be exercised unless the merits of the underlying application were extremely strong.
Nevertheless, the Court is mindful that the applicants were self-represented and appeared before the Court prepared for a hearing, as was the Minister. It would not be in the interests of justice or the efficient use of resources to deny the applicants an opportunity to be heard in circumstances where the delay in filing was only three days. Therefore, the Court is prepared to extend the time within which to bring the Review Application to the date upon which it was filed (13 December 2024). It also does so because there is an arguable ground of judicial review not identified by the applicants which means that it is in the interests of justice that the application for judicial review proceed to a final hearing.
Having granted an extension of time, the Rules provide that the review of an exercise of power by a Registrar must proceed by way of a hearing de novo (r 21.04(1) of the Rules).
FIRST HEARING - SUBMISSIONS
Noting that the applicants were unrepresented, the Court explained that the Court was required to hear the application for summary dismissal afresh. In order to obtain summary dismissal, the onus was upon the Minister to persuade the Court that the application for judicial review of the Tribunal’s Decision had no reasonable prospects of success (r 13.13(a) of the Rules). The Court also explained that it would be necessary for the applicants to persuade the Court that their application for judicial review had some prospects of success and was arguable.
The Court invited the first applicant to explain why the Tribunal erred in dismissing the application for review in circumstances where the first applicant was not enrolled in a registered course of study at the time of the application for the visa and the Decision.
The first applicant explained that he believed that it was unnecessary for him to have a current Confirmation of Enrolment because he received a letter from the Tribunal that said that he could submit either a Confirmation of Enrolment or other documents to show his eligibility for the visa. He said that he submitted the letter of offer in the belief that it was proper proof of eligibility. He submitted rhetorically that if the Tribunal required a Confirmation of Enrolment, then why did the letter from the Tribunal say that he could submit other documents. He submitted that the letter of offer from Central Melbourne Institute was sufficient and the Tribunal failed to consider it as proof of enrolment.
The letter from the Tribunal to which the first applicant was referring, was the invitation to attend a hearing dated 23 August 2019 (CB 167–9). The relevant parts of that letter relied on by the applicants are reproduced at paragraph 14 above.
The Court directed the first applicant to the requirement in that invitation letter that he demonstrate that he was currently enrolled in a course of study, as defined in the regulations and required by cl 500.211(a) of Sch 2 of the Regulations. The letter of offer from Central Melbourne Institute did not state that he was enrolled rather contained an offer of a place that was required to be accepted by signing the letter and paying the initial tuition fee. The Regulations required proof of actual enrolment and not a mere offer that was unaccepted.
The first applicant repeated his initial submission and said that the Tribunal failed to consider that he was a genuine student that genuinely intended to remain in Australia temporarily as a student. He also submitted that he had complied with all the conditions of his previous visas and that he was a genuine student who was entitled to a further visa. The delegate of the Minister was mistaken in finding that he was not a genuine student, and the Tribunal failed to properly consider or review the delegate’s decision.
In support of the application for summary dismissal, Mr O’Shannessy, on behalf of the Minister, relied upon the Minister’s outline of written submissions dated 7 November 2024 which was produced at the hearing before the Registrar on 3 December 2024. The Minister’s position was relatively simple. At the time of the Decision, the first applicant was not enrolled in a registered course of study and did not meet the principal criteria required by cl 500.211 of Sch 2 of the Regulations.
The letter of offer relied on by the first applicant was not proof of enrolment and the applicants’ application for judicial review had no reasonable prospects of success. Reliance was placed upon the principles relating to summary judgment in the decision of SpencervThe Commonwealth (2010) 241 CLR 118 [2010] HCA 28 (Spencer). It was submitted on behalf of the Minister that the power to summarily dismiss should be exercised with caution and only in cases where there is no genuine dispute as to material fact that might reasonably be resolved in the applicants’ favour (see AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33] per Judge Given).
The Minister also submitted that each of the grounds identified in the application for judicial review were untenable. The first ground was misconceived because once the Tribunal had found that the applicant was not enrolled in a registered course and did not meet cl 500.211 of Sch 2 of the Regulations, it foreclosed the possibility of a successful outcome and there was no reason for it to consider whether the applicant was a genuine temporary entrant under cl 500.212 of Sch 2 of the Regulations (see Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25 at [32] per Jagot, Bromich and Lee JJ and Mehra v Minister for Immigration and Multicultural Affairs [2024] FedFamC2G 1105 at [42] per Judge Cuthbertson (Mehra)).
Ground two of the application for judicial review was also misconceived because the letter of offer from the Central Melbourne Institute was not proof of enrolment. The Tribunal did consider the letter of offer but found that it was not evidence of actual enrolment in a course of study. The letter of offer was clear that it was not a confirmation of enrolment and that a confirmation of enrolment would only be provided in the event of the offer being accepted by signing and upon payment of the initial deposit. Further, the letter clearly stated that a confirmation of enrolment would be required for the purpose of renewal of a student visa.
The Tribunal was bound to reach the conclusion that it reached in the Decision and there was no jurisdictional error by the Tribunal in refusing the application for the visa and affirming the delegate’s decision. Without proof of confirmation of enrolment, the first applicant did not meet the primary criteria required by cl 500.211 of Sch 2 of the Regulations and further inquiry as to the merits of the application was unnecessary.
In reply, the first applicant was unable to assist or expand on his previous submissions. The first applicant maintained that the letter of offer responded to the Tribunal’s request for “other documents” and that he was a genuine student with connections to his home country, with an intention to return upon completion of his chosen course of study. He submitted that he had always complied with the conditions of his previous visas and completed the courses in which he had enrolled.
CHIKWEU
On 18 December 2024, the decision in Chikweu was published. In that case, Feutrill J found that a decision of the Tribunal disclosed a material jurisdictional error when the Tribunal failed to properly consider two criteria for the granting of a student visa. The first criteria was whether the applicant satisfied the financial capacity criteria in compliance with cl 500.214 of Sch 2 of the Regulations. The second was the absence of a Certificate of Enrolment under cl 500.211(a) of Sch 2 of the Regulations.
In Chikweu, his Honour said at [46]:
[46] If the only criterion remaining to be satisfied was enrolment and the appellant’s ability to produce evidence of a certificate of enrolment although unsatisfied was imminent, given the lengthy delay in the Tribunal’s review process, it is arguable that, in those circumstances, it would be legally unreasonable for the Tribunal not to adjourn the hearing, or at least consider adjourning the hearing, so as to afford the appellant an opportunity to adduce evidence to the effect that the enrolment criterion was satisfied at a later time when the decision was made: e.g., Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [23]-[31] (French CJ), [63]-[76], [82]-[85] (Hayne, Kiefel and Bell JJ), [88]-[92], [99]-[100], [105]-[113], [124] (Gageler J). Therefore, on the facts of this case, I do not consider the possibility of an adjournment and satisfaction of the enrolment criterion to be mere conjecture or speculation.
His Honour’s reasoning indicates that the finding above was made in the context of considering whether a jurisdictional error in relation to the financial capacity criteria was “material”. However, the reasoning suggests that in circumstances very similar to the facts in this case it may be arguable that it is legally unreasonable for the Tribunal not to adjourn the hearing, or at least consider adjourning the hearing, so as to afford the applicant an opportunity to adduce evidence of compliance with the enrolment criteria.
SECOND HEARING
At the second hearing on 18 February 2025 at Perth, Mr O’Shannessy appeared for the Minister and the first applicant appeared in person, both via video link.
Mr O’Shannessy acknowledged that there may be arguments available to the applicant based on the decision in Chikweu. Mr O’Shannessy also referred to a decision of Burley J in Bhandari v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 93 (Bhandari) in which his Honour held at [66]:
[66] The sole basis upon which the Tribunal determined that it should affirm the decision of the delegate was that it was not satisfied at the date of the hearing that Ms Bhandari was enrolled in a course of study in accordance with cl 500.211. It would appear from the reasons provided that in reaching that conclusion the Tribunal did not give proper consideration to the contents of the Unconditional Offer or to the statement provided by Ms Bhandari. Had it done so, in all of the circumstances that I have summarised in some detail above, any Tribunal acting reasonably according to substantial justice and the merits of the applicants’ case would have appreciated that the self-represented applicants sought a brief period of time in which to accept the Unconditional Offer and provide a COE to the Tribunal. The Tribunal must have appreciated that the applicants did not consider that they had presented their case (see Li at [79]) in circumstances where there was no pressing need for it to conclude the review on that day: Li at [80]. In my respectful view, having regard to the scope and purpose of the power to adjourn in s 363(1)(b) as that is connected to the purpose of s 360(1) of the Act, the Tribunal failed to adjourn and proceeded to deliver its ex tempore reasons in circumstances where it was plainly unjust to do so. The Tribunal acted in a manner that was legally unreasonable and therefore exceeded its jurisdiction.
Mr O’Shannessy sought to distinguish the facts in both Chikweu and Bhandari, but correctly conceded there were similarities in both cases to the facts in this proceeding.
Those similarities included that the first applicant was self-represented and received a letter from the Tribunal inviting the applicant to provide further information regarding enrolment seven days before the Tribunal hearing date (CB 168). The letter in Bahndari was in the following terms:
A copy of your current Confirmation of Enrolment (CoE) or other document/s that show you are currently enrolled in a course of study …
In Bahndari, the letter from the Tribunal also said that the applicant, Ms Bahndari, could provide “an offer for enrolment in a registered course as required for the grant of a student visa”. Here, those words were not used in the invitation letter sent to the first applicant and that was one of the distinguishing facts relied on to distinguish the facts in this case. There were also other distinguishing facts listed at [54]–[65] of that decision.
The first applicant was unable to assist the Court on the application of Chikweu and Bahndari to his circumstances, but he did add that he had observed a recent update to the departmental website that now provides that the Minister will no longer accept letters of offer as proof of enrolment. It was submitted that this was a recent change material to the applicants’ application for judicial review.
CONSIDERATION
The power to summarily dismiss an application for judicial review is found in r 13.13 of the Rules. The Court may dismiss if the proceeding or claim for relief has no reasonable prospect of success (r 13.13(a)). The power to do so must be exercised with caution (see Spencer at [24]).
The Minister bears the onus of proof to establish that the applicant has no reasonable prospects of success because the decision is not affected by jurisdictional error (see Spencer at [22] and Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [6]–[7]). The onus on the moving party is heavy (see Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [10]).
In Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256; [2006] HCA 27 at [46] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] as follows:
[46]…Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
In this case, the Tribunal decided that the primary criteria for eligibility for the visa contained in cl 500.211 of Sch 2 of the Regulations was not satisfied because the applicants had not established that the first applicant was enrolled in a registered course of study. The letter of offer submitted by the first applicant as proof of enrolment did not establish actual enrolment. It was no more than offer that was awaiting acceptance. There was no evidence before the Tribunal that the offer was accepted and that the first applicant was in fact enrolled in the proposed course of study. In the absence of proof of enrolment, the Tribunal was bound to reach the conclusion that the first applicant was not eligible for the visa and that the second, third and fourth applicants were not entitled to visas as dependent family members.
In Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 605 at [28] Rofe J said:
[28] The primary judge was correct in dismissing the related grounds is they were not relevant to the task of the Tribunal. Once it was determined that the appellant did not meet the mandatory requirement of a current enrolment in the course of study per cl 500.211(a), it was not required to assess whether any other visa criteria was or wasn’t met: Bodige v Minister for Immigration & Anor [2018] FCCA 1841 at [24].
The grounds of review identified by the applicants in their application for judicial review do not disclose an arguable claim to quash the Decision for jurisdictional error by the Tribunal. Ground one is factually wrong. The Tribunal did review the delegate’s decision, but it was not required to go through the reasons for refusal made by the delegate because at the time of making the Decision, there was no proof of enrolment before the Tribunal. Further, the function of the Tribunal was to consider the application for the visa afresh based on its merits (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [10] per French CJ).
Ground two is also without merit. The Tribunal did consider the letter of offer submitted by the first applicant and properly concluded that it was not proof of enrolment in a current course of study. Once it was determined that the applicants did not meet the mandatory requirement, the Tribunal was not required to assess whether any other visa criteria was or was not met (see also Mehra at [42]).
The letter of invitation from the Tribunal to the first applicant dated 23 August 2019 made plain that the first applicant was required to prove actual enrolment to satisfy the requirements of the Regulations (CB 167–8). The first applicant did not do so and placed the Tribunal in the position that it could affirm the delegate’s decision to refuse the application for the visa. However, the Tribunal did not consider the possibility of an adjournment of the hearing to allow the applicants to submit proper proof of enrolment in a registered course of study. In the circumstances of this case, and the first applicant’s stated confusion caused by the course provider and his own misunderstanding of the Regulations, an adjournment or at least an offer to adjourn was arguably unreasonable. The Decision does not indicate whether the applicant requested an adjournment or that the first applicant would comply with the Regulations if given further time to do so. Nevertheless, because the applicants were not represented and the first applicant explained that he had misunderstood the requirements of proof, it was open to the Tribunal to provide an opportunity for the applicants to take steps to comply. It would then be the Tribunal’s task to further review the delegate’s decision as to satisfaction of the other criteria in cl 500.211 of Sch 2 of the Regulations and whether the first applicant satisfied the “genuine student” test.
Chikweu and Bahndari expose the argument available to the applicants which was not considered by the Registrar when considering the application for summary dismissal. When considered afresh on a hearing de novo, the existence of that argument is sufficient to warrant the application for judicial review proceeding to a final hearing. As indicated, the threshold is not onerous and the power to summarily dismiss must be exercised with caution. In the circumstances of this case, the Review Application must succeed and the orders of the Registrar dismissing the application for judicial review with costs should be set aside.
ORDERS
1.The time within which to bring the applicants’ application for review pursuant to r. 21.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules 2021 (Cth) is extended to 13 December 2024.
2.The application for review of the decision of the Registrar made 3 December 2024 is allowed.
3.Orders 3 and 4 of the orders made by the Registrar on 3 December 2024 be set aside.
4.The application for judicial review filed 23 September 2019 is reinstated and is to be listed for final hearing on a date to be fixed.
5.The applicants’ costs of the application before the Registrar and this review application, if any, be the applicants’ costs in the proceeding.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 4 March 2025
SCHEDULE OF PARTIES
MLG3218 of 2019 Applicants
Fourth Applicant:
ZOHA KHAN
1
18
3