Kumaravel v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 821
•2 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumaravel v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 821
File number: MLG 2508 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 2 June 2025 Catchwords: MIGRATION – temporary graduate (post-work) (subclass 485) visa – where former Administrative Appeals Tribunal affirmed delegate’s decision that applicant did not satisfy cl 485.212 of the Regulations – where visa application was not accompanied by evidence that applicant sat an English language test within 3 years before the day on which the visa application was made – application for review of Registrar’s decision under s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – where Registrar summarily dismissed judicial review application pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – no reasonable prospects of success – application dismissed 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) r 13.13(a)
Migration Regulations 1994 (Cth) reg 1.15B, cls 485.212, 485.212(a), 485.212(b)
IMMI 15/062 (Specification of English Language Tests, Scores and Passports 2015)
Cases cited: Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
Kumar v Minister for Immigration and Border Protection [2018] FCA 140
Kumaravel v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 609
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610
Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1342
Spencer v The Commonwealth of Australia [2010] HCA 28, 241 CLR 118
Thlork v Minister for Immigration and Border Protection [2019] FCA 333
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of last submission/s: 21 May 2025 Date of hearing: 22 May 2025 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Ms A Lean Solicitors for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2508 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUBHASHINI RUKSHINI SUGANNIYA KUMARAVEL
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
2 JUNE 2025
THE COURT ORDERS THAT:
1.The application for review of the Registrar’s decision filed on 7 May 2025 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $1,000.00.
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 Gostencnik
INTRODUCTION
By application lodged on 2 August 2019, the applicant sought judicial review of a decision of the former Administrative Appeals Tribunal (Tribunal) made on 5 July 2019. The Tribunal’s decision affirmed an earlier decision of a delegate of the (then) Minister for Immigration, Citizenship and Multicultural Affairs made on 30 January 2019 refusing the applicant a temporary graduate visa. The delegate refused the visa application because the applicant did not satisfy the criteria specified in cl 485.212 of Sch 2 to the Migration Regulations 1994 (Cth)[1] (Regulations).
[1] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force.
In an amended Response to the applicant’s claim for final orders lodged on 3 March 2025, the first respondent claimed the judicial review application had no reasonable prospects of success and relevantly sought an order summarily dismissing the application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). On 28 April 2025, Registrar Cummings summarily dismissed the applicant’s judicial review application as it had no reasonable prospects of success, and ordered the applicant pay the first respondent’s costs in the amount of $2,200. The Registrar delivered ex tempore reasons for his decision, and subsequently produced a written version of his reasons: see Kumaravel v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 609.
On 5 May 2025, the applicant applied to the Court for a review of the Registrar’s decision pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
For the reasons explained below, I have decided to dismiss the application.
BACKGROUND
The applicant is a citizen of Sri Lanka who arrived in Australia on 16 December 2014. On 12 December 2018, the applicant applied for a Temporary Graduate (Post-Study Work) (Class VC) (Subclass 485) visa, and the Department of Home Affairs confirmed receipt of the application on even date. The applicant submitted documentary evidence in support of her visa application consisting of, inter alia, an International English Language Testing System (IELTS) test report form dated 6 September 2014; two student Confirmation of Enrolments to study a Master of Professional Accounting with Melbourne Institute of Technology and Federation University Australia; and completion certificates and academic transcripts for various courses.
On 30 January 2019, a delegate of the Minister refused the applicant’s visa application and transmitted a copy of the delegate’s decision record by email. The delegate highlighted the relevant criteria for the grant of a Temporary Graduate visa which is specified in cl 485.212 of Sch 2 to the Regulations as follows:
485.212 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.
For the purposes of cl 485.212(a) of Sch 2 to the Regulations, a language test specified by the Minister in the relevant legislative instrument includes, but is not limited to, an IELTS test which “must have been undertaken within the three years before the day on which the application was made”.
As earlier noted, accompanying the applicant’s visa application made on 12 December 2018, was an IELTS test dated 6 September 2014. The delegate relevantly considered that the test cannot meet the requirement specified in cl 485.212(a) of Sch 2 to the Regulations as it was undertaken more than 3 years before the date the visa application was made. As no other evidence was provided to indicate the applicant possessed an acceptable English test, the delegate was not satisfied the applicant met cl 485.212(a).
Furthermore, the applicant did not provide any evidence that she holds a passport of the type specified by the Minister in the relevant legislative instrument, and the delegate was not satisfied the applicant met cl 485.212(b) of Sch 2 to the Regulations.
The delegate was thereby not satisfied that the applicant met the criteria prescribed in cl 485.212 of Sch 2 to the Regulations, and refused the applicant’s application for a Temporary Graduate visa.
TRIBUNAL PROCEEDING
On 14 February 2019, the applicant applied to the Tribunal for a review of the delegate’s decision and submitted a copy of an IELTS test report form dated 4 February 2019 and a written submission dated 14 February 2019. In her submission, the applicant acknowledged that she provided an out-dated IELTS test report with her application to the Department and accounted her mistake to various life struggles. The applicant sought a reconsideration of the delegate’s decision, claiming that her new IELTS test report dated 4 February 2019 met the requirements of cl 485.212 of Sch 2 to the Regulations.
The Tribunal acknowledged receipt of the application on the day of lodgement and enclosed a copy of an ‘Information for migration review applicants – MR Division’ form. On 28 May 2019, the Tribunal invited the applicant to attend a hearing scheduled on 28 June 2019 to give evidence and present arguments relating to the issues in her case. The Tribunal advised in its correspondence that the applicant did not present any evidence that she met the English language proficiency standard for the grant of the visa. The Tribunal relevantly explained the mandatory requirements as follows:
How you can show you meet the English language proficiency standard
To show you meet the English language standard, you must hold a valid passport issued by a specified country (UK, USA , Canada, New Zealand or Republic of Ireland), or have achieved a specified score in a specified language test that was undertaken within 3 years before the day on which the visa application was made.
…
The correspondence also enclosed a copy of an ‘Information about hearings – MR Division’ factsheet and a ‘Response to hearing invitation – MR Division’ form to confirm her attendance at the hearing and requested the applicant provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider. The applicant attended the scheduled hearing on 28 June 2019.
By its decision made on 5 July 2019, the Tribunal affirmed the delegate’s decision refusing to grant the applicant a Temporary Graduate visa. The applicant was notified of the Tribunal’s decision on 8 July 2019 by email transmission, which enclosed a copy of the Tribunal’s Statement of Decision and Reasons (Decision) and an ‘Information about decisions – MR Division’ factsheet.
TRIBUNAL’S DECISION AND REASONS
The Tribunal set out the application for review at [1]–[7] of the Decision. The Tribunal identified the determinative issue was whether the applicant satisfied the mandatory requirements for the grant of a Temporary Graduate visa as described in cl 485.212 of Sch 2 to the Regulations: at [8]. The relevant instrument specified by the Minister for para 485.212(a)(i) is IMMI 15/062 (Specification of English Language Tests, Scores and Passports 2015), which outlines that the application must be accompanied by evidence that the applicant has undertaken a language test within the period specified or is the holder of a passport of the type specified by the Minister.
The applicant advised the Tribunal that her last IELTS test was on 6 September 2014 and acknowledged her mistake. The applicant, in part, attributed the mistake to her experience with a fraudulent agent and submitted the application on her own with no guidance. The applicant otherwise explained that she wanted to advance her career and “access good opportunities”: at [10]–[14].
As the applicant provided a result for an IELTS test undertaken more than 3 years prior to the date of her visa application, the Tribunal was not satisfied that the application was accompanied by evidence that met cl 485.212(a) of Sch 2 to the Regulations: at [16]–[17]. Furthermore, as the applicant did not provide evidence of a valid passport of the type specified by the Minister, the applicant did not satisfy cl 485.212(b): at [9]. The Tribunal concluded that the applicant did not meet the requirements for the grant of the visa as described in cl 485.212, and the decision under review was affirmed: at [16]–[19].
CONSIDERATION
The applicant’s judicial review application sets out the following grounds of review:
1.I applied for a Temporary Graduate (Post Study Work) (Subclass 485) visa on 12/12/2018. The visa got (sic) refused as I did not satisfy the clause 485.212 of the Migration Regulation.
2.14/12/2019 I applied for a (sic) Merits review at the Administrative Appeals Tribunal. I appeared for the Tribunal on 28/06/2019 and on 08/07/2019 I’ve been notified that the Tribunal affirms the decision not to grant the visa as the IELTS result was not submitted along with the application.
3.I have mistakenly provided with (sic) the IELTS test result as on 06/07/2014. Though I have satisfied the minimum requirement scores for each of the test Components of the IELTS English test; thus, it exceeded the period specified by the Minister in the instrument which is greater than 3 years.
4.I re-did IELTS exam on 04/02/2019 before I apply for a merits review at the Tribunal. Thus, (sic) Tribunal did not consider my new IELTS exam result.
5.I explained the stress anxiety when I applied for this visa and I genuinely excepted (sic) the mistake as I applied for this visa by (sic) my own.
As earlier mentioned, on 28 April 2025, a Registrar summarily dismissed the applicant’s judicial review application because it had no reasonable prospects of success. A review of the exercise of a Registrar’s delegated powers is undertaken de novo, and so the Court will decide for itself the merits of the matter that was before the Registrar. Here, the relevant matter was an application for summary dismissal of the applicant’s judicial review application because it had no reasonable prospects of success. As already noted, the Registrar dismissed the applicant’s judicial review application on that basis. The Court is not concerned with identifying or correcting any error by the Registrar. The conduct of the review requires the Court to hear the matter afresh. That means, in the instant case, the Court must determine for itself whether the applicant’s judicial review application should be summarily dismissed pursuant to r 13.13(a) of the Rules.
Before turning to consider the applicant’s review grounds, I should deal briefly with the meaning and application of the phrase “has no reasonable prospect of success”. Without traversing in any detail, the authorities where the meaning of the phrase “no reasonable prospect of success” has been considered, it is sufficient for present purposes to observe the following. A conclusion that an application has no reasonable prospect of success should only be reached cautiously and in circumstances, for example, where an application is manifestly untenable or is groundless or is so lacking in merit or substance as to be not reasonably arguable. But these epitaphs do not describe exhaustively the circumstances in which a particular application might have no reasonable prospect of success. As the majority (Hayne, Crennan, Kiefel and Bell JJ) in Spencer v The Commonwealth of Australia [2010] HCA 28, 241 CLR 118 at [59]–[60] made clear, the phrase “no reasonable prospect of success” will not sufficiently, let alone completely, be illuminated by drawing some contrast with what would be a frivolous, untenable, groundless or faulty claim and full weight should be given to the expression as a whole. The observations in Spencer are apt to apply to the phrase “has no reasonable prospect of success” in r 13.13(a) of the Rules.
During the hearing before me, the applicant contended that she was denied procedural fairness as the Tribunal failed to inquire why the applicant provided a different IELTS test report, and the Tribunal otherwise acted unreasonably by not considering her new evidence. This contention is misconceived and has no reasonable prospects of success. The IELTS test report dated 4 February 2019 failed to satisfy the conditions prescribed by IMMI 15/062 (and therefore para 485.212(a)(i) of Sch 2 to the Regulations), which details that the English language test must have been undertaken within the three years before the day on which the visa application was made. The 4 February 2019 IELTS test was self-evidently reporting on a test undertaken after the applicant applied for a visa on 12 December 2018. The 4 February 2019 IELTS test was not relevant to the task undertaken by the Tribunal. The IELTS tests dated 6 September 2014 and 4 February 2019 both fell outside the 3-year window of opportunity – the first was undertaken before the window opened, the second, after it had closed. Neither satisfied the statutory requirement. The applicant made no further contention in the hearing, nor sought to engage with or elaborate on her grounds of review.
Nevertheless, I will consider the grounds the applicant advances in the application.
Grounds 1 to 3 merely reproduce the background facts to the proceeding and proffer no basis for identifying jurisdictional error. Ground 4 contends that the Tribunal erred in failing to consider the applicant’s new IELTS test report which she re-did on 4 February 2019. This ground seeks, in substance, to agitate the same complaint the applicant made orally during the hearing before me.
As to ground 4, it may be accepted that the Tribunal did not make express reference to the applicant’s 4 February 2019 IELTS test report. The Tribunal appears to note only that “evidence was provided to the Tribunal that confirmed the applicant undertook her IELTS Test on 6 September 2014, which is greater than three years prior to (sic) application”: at [16].
The first respondent contends that whilst the Tribunal made no explicit reference to the 4 February 2019 IELTS test report, the Tribunal’s statement at [16] should be read as a finding that the applicant did not submit a IELTS test with her application to satisfy cl 485.212 of Sch 2 to the Regulations. This is because the Tribunal reasoned in the same paragraph of its decision that the IELTS test dated 6 September 2014 was greater than 3 years prior to the date of the application. The first respondent further submits that insofar as the Tribunal made no reference to the IELTS test report dated 4 February 2019, the error is not material as it would not have affected the outcome of the Tribunal’s decision.
I agree with the second part of the first respondent’s contention. As to the first, it seems clear the Tribunal did not refer to, and therefore may be taken not to have considered, the 4 February 2019 IELTS test report. But as I have earlier explained, that is of no moment because it was not relevant in the sense that the 4 February 2019 IELTS test was not one that complied with the requirements in cl 485.212 of Sch 2 to the Regulations. The 6 September 2014 IELTS test report was outside the 3-year requirement because it was undertaken more than 3 years before the applicant’s visa application. The 4 February 2019 IELTS test was undertaken after the applicant made the visa application. Neither of the IELTS tests could satisfy the requirements set forth by the Minister in the IMMI 15/062 Instrument and so could not satisfy the requirements in cl 485.212 of Sch 2 to the Regulations.
Perhaps the Tribunal should have taken the time to explain in its reasons why the 4 February 2019 IELTS test report also did not meet the requirements in cl 485.212 of Sch 2 to the Regulations, however I do not consider that its failure to do so sounds in jurisdictional error. But if that be wrong, such error was immaterial because, as already explained, the applicant’s “new” test report fell outside the stipulated window of opportunity, and there is no possibility that the Tribunal’s decision could have been any different: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610 at [7] and the authorities cited therein. It is plain that the applicant did not meet the requirements in cl 485.212 of the Regulations and the Tribunal had no power to decide otherwise: Thlork v Minister for Immigration and Border Protection [2019] FCA 333 at [12].
Ground 4 does not disclose jurisdictional error and has no reasonable prospects of succeeding.
Ground 5 of the applicant’s application contends that her initial IELTS test report submission was a mistake made because of stress and anxiety.
The Court cannot review the delegate’s decision. Insofar as the applicant attributes her initial IELTS test report submission to a ‘mistake’, assertions of fault are not relevant. As the Full Court in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [15] explained, “[t]he test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not”: see also Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1342 at [30]. Here it was not.
Ground 5 does not disclose jurisdictional error. It has no reasonable prospects of success.
The applicant’s written submissions contend that she was not aware of the requirement that the English language test must be undertaken within 3 years before the day on which the application was made, and takes issue with the interpretation of reg 1.15B of the Regulations.
Dealing with the first matter, it is ultimately the applicant’s responsibility to ascertain and access any available rights, and the limitations to the exercise of those rights. In any event, the applicant’s state of knowledge does not provide in this case, a sound ground of review. The requirements in cl 485.212 of Sch 2 to the Regulations are strict and clear. A visa applicant either meets the requirements or not. The applicant did not. As to the second matter, the applicant contends that the interpretation of reg 1.15B of the Regulations is “an overly narrow and rigid manner, treating the expiry of the applicant’s English language test result as automatically disqualifying, without considering whether the test result remained probative of the applicant’s English language proficiency …”. Regulation 1.15B of the Regulations was not a consideration of the Tribunal’s decision. To the extent the applicant refers to reg 1.15B, I take this to be a typographical error, and that the applicant intended to quarrel with the construction of cl 485.212. The provisions of cl 485.212 and IMMI 15/062 are strictly applied, in that the requirements are fixed, inflexible and mandatory: Thlork at [3]–[12], and as Robertson J observed in Kumar v Minister for Immigration and Border Protection [2018] FCA 140 at [24] there is “no arguable ambiguity in the terms of either cl 485.212 or IMMI 15/062”. The level of the applicant’s English language proficiency is not a matter that the Court (nor the Tribunal) can consider in circumstances where the requirements for the grant of the visa have not been met.
No arguable case of jurisdictional error is disclosed in the applicant’s written submissions, and these have no reasonable prospects of success.
I consider, for the reasons given earlier, that the applicant’s judicial review application has no reasonable prospects of success and should be dismissed. Accordingly, the Registrar was correct in concluding that the judicial review application has no reasonable prospects of success and in summarily dismissing the judicial review application under r 13.13(a) of the Rules.
The application for review of the exercise of power by the Registrar is therefore dismissed.
Costs
The first respondent sought an award for costs fixed in the sum of $1,000.00 in the event the applicant was unsuccessful. The applicant did not advance any cogent reason why, in that event, an order for the costs sought should not be made. Considering the nature of the proceeding and the work undertaken by the first respondent’s lawyers, I consider the amount sought to be reasonable and appropriate.
The applicant will be required to pay the first respondent’s costs fixed in the sum of $1,000.00.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 2 June 2025
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