Luqman v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1604
•1 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Luqman v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1604
File number(s): SYG 2891 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 failure to appear at hearing - whether judicial review application has reasonable prospects of success – application dismissed
PRACTICE AND PROCEDURE – Bare and unsatisfactory medical certificates – need for medical certificate or medical evidence to explain why medical condition prevented applicant from attending or participating in hearing in person or by video link
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1)(c), 17.05(2)(a)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 24.04(a)
Cases cited: AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815
BXD17 v Minister for Immigration and Border Protection [2018] FCA 765
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Luqman v Minister for Immigration and Citizenship [2025] FedCFamC2G 1370
Masone v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 64
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209
Nadeem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1498
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 79
Singh v Minister for Immigration and Border Protection [2016] FCA 108
Singh v Minister for Immigration and Border Protection [2017] FCA 216
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 29 September 2025 Place: Parramatta Applicant: In person Solicitor for the Respondents: Ms Lisa Liu (Hunt & Hunt Lawyers) ORDERS
SYG 2891 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD LUQMAN
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 application in a proceeding accepted for filing on 22 September 2025 is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $2,251.20.
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
INTRODUCTION
This is my second judgment in this matter. In my first judgment (see Luqman v Minister for Immigration and Citizenship [2025] FedCFamC2G 1370 published on 22 August 2025 (First Judgment)), I made orders dismissing the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 10 October 2024 (Judicial Review Application) under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (as they then were) (2021 Rules) because he did not appear at the hearing in this Court on 20 August 2025.
On 17 September 2025, the applicant lodged in this Court an application in a proceeding, accepted for filing on 22 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 22 August 2025, commonly referred to as a reinstatement application (Reinstatement Application).
This judgment determines the Reinstatement Application.
PROCEDURAL HISTORY
Background up to lodging of Judicial Review Application in November 2024
Paragraphs 3 to 8 of the First Judgment set out a chronology of relevant events leading up to the applicant lodging the Judicial Review Application in November 2024. To assist in understanding the present judgment, a short summary is as follows.
In March 2023, the applicant lodged an application for a subclass 500 student visa.
Following a refusal of the application by a delegate of the first respondent, an application by the applicant to the Tribunal for review of the delegate’s decision, and a hearing before the Tribunal, on 10 October 2024 the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a student visa.
On 7 November 2024, the applicant lodged in this Court the Judicial Review Application. The application contains three grounds which can be summarised as follows:
(a)The “Tribunal erred in its application of the … GTE criterion under reg 500.212 of the Migration Regulations 1994” because it “placed disproportionate weight on the applicant’s historical changes in study courses (see paragraphs 24-33) while neglecting the applicant’s clear, articulated career pathway in the construction industry (see paragraph 39)”: ground 1.
(b)The “Tribunal committed a significant procedural error by not giving sufficient weight to the applicant’s strong family ties in Pakistan (see paragraphs 20-21) which are crucial factors supporting his return” and “it failed to fully assess how these factors substantiate his intention to remain in Australia temporarily”: ground 2.
(c)The “Tribunal placed undue emphasis on the applicant’s periods of non-enrolment (see paragraphs 30-33) and his varied enrolment history (see paragraphs 24-41), failing to acknowledge the legitimate explanations provided for these gaps, such as familial responsibilities and uncertainty regarding his career path”: ground 3.
Events between lodging of Judicial Review Application and hearing on 20 August 2025
Paragraphs 9 to 23 of the First Judgment set out a reasonably detailed description of events between the date the applicant lodged the Judicial Review Application and the hearing of the application on 20 August 2025. Since the events are relevant to the determination of this Reinstatement Application, parts of the description are repeated in the following paragraphs.
On 13 June 2025, there was a directions hearing before a registrar of the Court which the applicant attended by telephone. The registrar made procedural orders, including that, upon the Judicial Review Application being listed for hearing, the applicant file and serve at least 28 days before the hearing, any amended application giving proper particulars, additional evidence and a written submission.
On 24 July 2025, the parties were notified by the registry of the Court that the Judicial Review Application was listed for hearing on the afternoon of 20 August 2025.
The applicant did not file any amended application, submission or evidence before the hearing on 20 August 2025.
On the evening of 18 August 2025, the applicant sent an email to the Court which stated:
Hi, with all due respect I am about to say that I am unable to attend the hearing on Wednesday, 20 August due to my health issues.
I'm not feeling so well. Doctor prescribed me a blood test and I can't go anywhere.
I do apologize. As you can see my certificate and my blood test prescription. I’m attaching both my certificates.
Just take a look at them please. Thank you
The email from the applicant attached a medical certificate from Dr Bo Li Zhu, a general practitioner based in Auburn, dated 18 August 2025 which stated:
This is to certify that Muhammad Luqman will be unfit for work due [to] medical illness from 18/08/2025 to 25/08/2025 inclusive.
The email also attached a pathology referral for the applicant for a blood test.
On 19 August 2025, the Court sent an email to the applicant, copied to the first respondent’s solicitor, which stated:
Dear Parties and Legal Representatives,
I refer to the email below which has been brought to the attention of Judge Zipser.
His Honour has reviewed the medical documents attached to the applicant’s email. The documents do not establish that the applicant is unable to attend or participate in the hearing tomorrow on the basis of his health issues. The hearing will proceed at 2:15 pm.
The email continued that, to accommodate the applicant’s health issues, the applicant could appear at the hearing remotely by Webex. The email included a Webex link.
Around 12:30 pm on 20 August 2025, the applicant sent an email to the Court, copied to the first respondent’s solicitor which stated:
My hearing is today at 2:15pm but I’m unable to attend the hearing due to my health conditions. I just recently run for the doctor as I am not feeling well. I have flu feeling cold and coughing. As you can see my certificate which doctor gave it to me. I do apologise for this.
Thank you for your understanding.
The email attached a further medical certificate from Dr Bo Li Zhu dated 20 August 2025 which stated:
This is to certify that Muhammad Luqman will be unfit to attend visa application interview due to flu from 20/08/2025 to 22/08/2025 inclusive.
The hearing on 20 August 2025 commenced at 2:40 pm and concluded at 3:05 pm. There was no appearance by or for the applicant, either in person or via Webex. As explained in paragraphs 22 and 23 of the First Judgment, at the request of the first respondent’s solicitor I agreed to dismiss the application under r 13.06(1)(c) of the 2021 Rules.
Events following hearing on 20 August 2025
On 22 August 2025, the First Judgment was handed down and emailed to the parties. Paragraph 23 of the First Judgment identified inadequacies in the medical evidence on which the applicant relied in support of his adjournment requests on 18 and 20 August 2025 as follows:
… I do not accept that the applicant had a health condition which prevented him from attending the hearing. The two medical certificates emailed by the applicant to my Chambers are unsatisfactory and do not persuade me that the applicant had a health condition which prevented him from attending, or even made it difficult or inconvenient for him to attend, the hearing.
Paragraphs 24 and 25 of the First Judgment added:
24.If an event prevented the applicant from attending the hearing on 20 August 2025 and he is aggrieved that the application was dismissed in his absence, pursuant to r 17.05 of the Rules, he 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, he should file and serve an accompanying affidavit which provides evidence explaining the circumstances which prevented him from attending the hearing on 20 August 2025. If the applicant seeks to again rely on medical evidence, the review of Federal Court authorities in Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFam2G 25 at [83]-[90] provides guidance concerning medical evidence a party must obtain if they wish to persuade the court they were unable to attend a hearing because of a medical condition. In the absence of a satisfactory explanation from the applicant, a question may arise as to whether his conduct involves an abuse by the applicant of the process of this Court.
25.If the applicant is genuinely aggrieved that the application was dismissed in his absence and he files an application under r 17.05:
(a) He 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. The order made on 22 August 2025 dismissing the application be set aside.
2.The original application for judicial review (filed 7 November 2024) be reinstated.
3.The matter be listed for hearing before this Honourable Court. Based on the ground that the Tribunal has made jurisdiction error.
The Reinstatement Application included as reasons the Judicial Review Application should be reinstated:
(a)“While the initial medical evidence was not accepted by the Court, the applicant now provides enhanced clinical documentation meeting the standard set out in Zangmo v Minister [2022] FedCFam2G 25”.
(b)There “remains a real prospect that the Tribunal’s decision contains jurisdictional error”. This sentence was followed by three contentions concerning jurisdictional error which appear to match the three grounds in the Judicial Review Application – see paragraph 7 above.
The Reinstatement Application was accompanied by an affidavit from the applicant accepted for filing on 22 September 2025 (Reinstatement Affidavit) in which the applicant stated in relation to his medical ailment:
3.On 18 August 2025, I attended Dr Bo Li Zhu at City West Medical Centre due to worsening flu-like symptoms, including high fever (39.2°C), persistent cough, body aches, chills, and extreme fatigue.
4.Dr Bo Li Zhu examined me and she observe that I was very weak and with high fever so she ordered blood tests (CBC, CRP, influenza swab), and advised complete rest. She issued a medical certificate stating I was unfit for work until 22 August 2025.
5.…
6.On 19 August 2025 … I was struggling with flu and had very high fever.
7.On 20 August 2025 I visited the doctor and when he observe me. It was clear that I am struggling with my fever, my condition had not improved. I experienced dizziness and shortness of breath upon standing. I returned to the clinic briefly to see the duty GP, Dr Bo Li Zhu, who confirmed I remained unwell and issued a second certificate noting I was unfit to attend a visa interview due to flu type symptoms.
8.After examination Dr Li give me a letter confirming my inability to attend the court interview and ask me to take reset till 22 August 2025. I immediately send that letter to the court.
…
12.… Furthermore I have also attached new medical certificate from Dr Bann Yagoub confirming my health condition on 20 August 2025.
In relation to documentary medical evidence annexed to the Reinstatement Affidavit, the only new document was the “new medical certificate from Dr Bann Yagoub” referred to in paragraph 12 of the affidavit. The medical certificate is dated 16 September 2025. Dr Yagoub wrote:
This is to certify that Mr Muhammad Luqman presented to the medical centre on 20.8.2025, has had severe flu symptoms (high temp, rigors, body ache, sore throat, headache), advised to have medications, rest...
The Reinstatement Affidavit also annexed a written submission which made the same three contentions concerning jurisdictional error in the Tribunal’s decision contained in the Judicial Review Application – see paragraph 7 above. I address the contentions below.
On 22 September 2025, the Reinstatement Application and Reinstatement Affidavit were accepted for filing by the registry. On 24 September 2025, the Court made, and emailed to the parties, procedural orders including the following:
1.The Reinstatement Application is listed for hearing at 2 pm on 29 September 2025 before Judge Zipser.
2.The applicant is to file and serve any further materials in support of the Reinstatement Application by 12 pm on 26 September 2025.
3.The first respondent may file and serve any materials in reply by 12 pm on 29 September 2025.
The applicant did not file any further materials before the hearing.
On 29 September 2025, the first respondent filed a written submission (RS).
HEARING OF REINSTATEMENT APPLICATION ON 29 SEPTEMBER 2025
At the hearing of the Reinstatement Application on 29 September 2025, the applicant appeared unrepresented, assisted by an interpreter in the Urdu language. Lisa Liu from Hunt & Hunt Lawyers appeared for the first respondent.
At the start of the hearing, I ensured the applicant had a copy of the Reinstatement Application, the Reinstatement Affidavit, and the decision of the Tribunal dated 10 October 2024. He also had a copy of the first respondent’s written submission filed and served by email earlier that day.
I explained to the applicant that he must persuade the Court:
(a)he had a satisfactory explanation for not appearing at the hearing on 20 August 2025; and
(b)he had an arguable case, or arguable prospects of success, in relation to the Judicial Review Application, which in turn required the applicant to persuade the Court there was a possible jurisdictional error in the Tribunal’s decision dated 10 October 2024.
In relation to the task of persuading the Court that there was a possible jurisdictional error in the Tribunal’s decision, I directed the applicant’s attention to the Tribunal’s decision and, with reference to the Tribunal’s decision, explained the main categories of jurisdictional error.
Ms Liu tendered a Court Book (CB) which contained the Tribunal’s decision and documents before the Tribunal.
I read the Reinstatement Affidavit. Ms Liu did not wish to cross-examine the applicant.
The applicant made oral submissions concerning why he did not appear at the hearing on 20 August 2025. During the submissions:
(a)The applicant explained that, in relation to the medical certificate dated 16 September 2025 from Dr Yagoub (see paragraph 26 above), on 16 September 2025 the applicant attended the medical centre, communicated the symptoms he experienced on 20 August 2025 to Dr Yagoub, and Dr Yagoub recorded the symptoms in the medical certificate.
(b)I directed the applicant’s attention to the paragraph of the Reinstatement Application set out in paragraph 24(a) above. I asked the applicant to identify the “enhanced clinical documentation meeting the standards set out in Zangmo”. The applicant was unable to identify this evidence. He was also unable to explain why the medical evidence on which he relied met the Zangmo standard.
I invited the applicant to explain the passing of 26 days between the date his proceeding was dismissed (22 August 2025) and the date he lodged the Reinstatement Application (17 September 2025). The applicant stated that he could not lodge the Reinstatement Application until he obtained the medical certificate from Dr Yagoub dated 16 September 2025. But this begs the question, not answered by the applicant, why he waited three weeks (between 22 August and 16 September) before seeing Dr Yagoub.
I invited the applicant to explain whether there is a jurisdictional error in the Tribunal’s decision. The applicant complained that the Tribunal did not accept he was a genuine temporary entrant. The applicant said the Tribunal’s decision was wrong. The applicant was unable to identify a more specific error in the Tribunal’s decision.
Ms Liu, in her oral submissions, principally relied on the first respondent’s written submission filed earlier in the day.
PRINCIPLES FOR REINSTATEMENT
Rule 24.04(a) of the 2025 Rules states:
(2)The Court may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; …
In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7] Ryan J stated:
In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
•whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
•the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
•whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.
In FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50] the Full Court stated that the primary judge is required to consider “whether or not it was in the interests of justice to reinstate the applicant’s application”. The Full Court at [53] added that “the factors that are often considered are not mandatory relevant considerations but potential aspects of what is in the interests of justice in a particular case”. The Full Court at [60] stated that there was nothing in MZYEZ at [7] which was inconsistent with the Full Court’s approach.
In CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15) at [4] Mortimer J stated:
As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
CONSIDERATION
Whether adequate explanation or reasonable excuse for non-appearance at hearing in August 2025
In paragraph 23 of the First Judgment I wrote:
Further, I do not accept that the applicant had a health condition which prevented him from attending the hearing. The two medical certificates emailed by the applicant to my Chambers are unsatisfactory and do not persuade me that the applicant had a health condition which prevented him from attending, or even made it difficult or inconvenient for him to attend, the hearing.
The useful review of Federal Court authorities (NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 79; Singh v Minister for Immigration and Border Protection [2016] FCA 108; AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815; and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75) in Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25 (Zangmo) at [83]-[90] concerning medical evidence provided in support of adjournment applications is consistent with my view that the medical evidence provided by the applicant preceding the hearing on 20 August 2025 was unsatisfactory. Among other reasons:
(a)The medical certificate dated 18 August 2025 does not identify the “medical illness” suffered by the applicant. Nor does the certificate explain any symptoms experienced by the applicant which caused him to be “unfit for work”, let alone to be unfit for work up to 25 August 2025, or unfit to attend a court hearing.
(b)The applicant, in his email dated 18 August 2025, did not explain any symptoms from which he was suffering. He merely stated that he was “not feeling so well”.
(c)Despite the applicant then being on notice from the Court’s email dated 19 August 2025 that the medical certificate dated 18 August 2025 was unsatisfactory and he must provide evidence that he was “unable to attend or participate in the hearing … on the basis of his health issues”:
(i)The medical certificate dated 20 August 2025 does not identify any symptoms experienced by the applicant which caused him to be “unfit to attend visa application”.
(ii)The applicant, in his email dated 20 August 2025, did not explain any symptoms from which he was suffering which prevented him from attending the hearing, whether in person or by video link. He merely stated that he has “flu feeling cold and coughing”.
To the Federal Court authorities considered in Zangmo, the respondent’s written submission at RS [33]-[35] usefully adds MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 at [2], Singh v Minister for Immigration and Border Protection [2017] FCA 216 at [16], BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [35], and Nadeem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1498 at [32].
Despite the fact that paragraph 23 of the First Judgment put the applicant on notice that I considered the medical evidence presented up to 20 August 2025 unsatisfactory, but for two new items of evidence, the applicant merely re-submitted the same medical evidence in the Reinstatement Application to explain why he did not appear at the hearing on 20 August 2025. The two new items of evidence are as follows.
First, the applicant annexed to the Reinstatement Affidavit a medical certificate from Dr Yagoub dated 16 September 2025. However, the applicant acknowledged in closing submissions that Dr Yagoub merely recorded the symptoms the applicant reported to Dr Yagoub on 16 September 2025. I place no weight on this medical certificate since it merely records the applicant’s assertions on 16 September 2025 about symptoms he claimed to have experienced a month earlier.
Second, the applicant described in the Reinstatement Affidavit (sworn on 16 September 2025) the various symptoms he claims to have experienced on 18 August (“worsening flu-like symptoms, including high fever (39.2 degrees), persistent cough, body aches, chills and extreme fatigue”), 19 August (“very high fever”) and 20 August (“dizziness and shortness of breath upon standing”). Yet, the contemporaneous medical certificates obtained by the applicant recorded none of these symptoms, which causes me to doubt the applicant experienced the symptoms.
Further, the applicant’s evidence does not adequately address why he did not take up the offer, communicated to him in an email from the Court on 19 August 2025, to appear at the hearing by video link. He stated in the Reinstatement Affidavit at [10]:
I was aware of the option to appear remotely via Webex but believed, in my unwell state, I would be unable to focus or respond coherently during legal argument.
However, first, the contemporaneous medical certificates dated 18 and 20 August 2025 do not support the applicant’s assertion that he would be “unable to focus or respond coherently during legal argument”. Second, the fact that the applicant did not include this explanation in his email dated 20 August 2025 causes me to doubt its truthfulness.
In conclusion, I am not persuaded by the evidence provided by the applicant that he had a medical ailment on 20 August 2025 which caused him to be unfit or unable to attend the hearing that day and present his case. The applicant’s explanation for not appearing at the hearing on 20 August 2025 is unsatisfactory and inadequate. This consideration weighs against reinstatement.
Whether arguable case or arguable prospects of success on judicial review
The Judicial Review Application contains three grounds. The applicant continues to rely on the three grounds in the Reinstatement Application. I address the grounds in the following paragraphs.
Ground 1
The applicant contends that the Tribunal “erred in its application of the …GTE criterion under reg 500.212 of the Migration Regulations 1994” because it “placed disproportionate weight on the applicant’s historical changes in study courses (see paragraphs 24-33) while neglecting the applicant’s clear, articulated career pathway in the construction industry (see paragraph 39)”.
There are difficulties with this ground. First, while the Tribunal noted the various changes in study courses undertaken by the applicant in the 10 years he had been in Australia on student visas, the Tribunal’s main concerns were not the changes in study courses but:
(a)the length of time the applicant has remained in Australia on student visas;
(b)“he has not completed any courses beyond the Diploma level and may be undertaking a range of courses in vocational fields to maintain ongoing residence in Australia” (at [26]); and
(c)“he also appears to have a gap of about 16 months between enrolments” between January 2019 and May 2020 (at [26]) which he was unable to satisfactorily explain (see at [31]).
In this context, the Tribunal found at [33]:
Given the length of time the applicant has remained in Australia and his enrolment history over the past 10 years, I have concerns that the Student visa is being used not for the stated purpose of obtaining qualifications which will be of use to the applicant's future, but to maintain ongoing residence and to circumvent the intentions of the migration programme. … I also give weight to the applicant remaining unenrolled for a period of about 16 months and find that he has provided insufficient explanation for remaining unenrolled for such a lengthy period of time, which raises concerns about his stated intention to remain in Australia only temporarily for the purpose of completing qualifications. While I have taken into account the applicant's completion of the Certificate Ill in Painting and Decorating and consider this to be a positive fact in his favour, I have concerns that he has now enrolled in a further vocational course which will extend his stay to almost 12 years. I consider the length of time the applicant has remained in Australia may in itself indicate that he has developed ties to Australia.
Second, to the extent that the Tribunal placed any weight against the applicant on his changes in study courses, on application of orthodox principles explained in cases such as NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], the weight the Tribunal gives to evidence is a matter for the Tribunal. Third, the Tribunal at [38]-[39] placed weight in the applicant’s favour on his articulated career pathway in the construction industry.
In the above circumstances, it is clear that the Tribunal did not neglect or disregard the applicant’s evidence concerning his career pathway in the construction industry, or place weight on the applicant’s changes in study course in a manner which might involve jurisdictional error.
Ground 2
The applicant contends that the “Tribunal committed a significant procedural error by not giving sufficient weight to the applicant’s strong family ties in Pakistan (see paragraphs 20-21) which are crucial factors supporting his return” and “it failed to fully assess how these factors substantiate his intention to remain in Australia temporarily”.
The Tribunal at [20]-[21], after considering the applicant’s family ties in Pakistan, placed weight on this factor in the applicant’s favour when it found:
… Overall, I find the applicant has strong family ties, and a potential employment or business opportunity through one of his cousins in Pakistan. I accept that these ties may serve as some incentive for the applicant to return to his home country and I take this into account in assessing his circumstances as a whole.
The applicant’s complaint appears to be that the Tribunal should have placed more weight than it did on this factor in the applicant’s favour. However, as stated above, the weight the Tribunal gives to evidence is a matter for the Tribunal. That the applicant disagrees with the weight the Tribunal placed on items of evidence or a factor in Direction No 108 with which the Tribunal was required to comply (see Tribunal’s decision at [15]-[16]) is not a jurisdictional error.
Ground 3
The applicant contends that the “Tribunal placed undue emphasis on the applicant’s periods of non-enrolment (see paragraphs 30-33) and his varied enrolment history (see paragraphs 24-41), failing to acknowledge the legitimate explanations provided for these gaps, such as familial responsibilities and uncertainty regarding his career path”.
There are difficulties with this ground. First, in relation to the 16 month period between January 2019 and May 2020 in which the applicant was not enrolled in a course of study, the Tribunal put its concern about the gap to the applicant and recorded the following answer at [31]:
When asked why he was not enrolled for a period of about 16 months from January 2019 to May 2020, he stated that he had applied for a Student visa. When asked whether there were any other reasons, he stated that there were some problems going on in Pakistan, and that he was confused and unable to stabilise his mind.
Based on the Tribunal’s reasons for decision, contrary to the assertion in ground 3, the applicant did not provide “a legitimate explanation … for these gaps, such as familial responsibilities”. The Tribunal cannot consider, or be criticised for not considering, evidence never put to it by the applicant.
Second, in relation to the applicant’s varied enrolment history, the Tribunal put the issue to the applicant and recorded the following answer at [32]:
As to the concern that he has studied courses in different fields and appears to be jumping from one field to another, he stated that he was planning to do something to secure his future and is focused on one thing now.
The Tribunal at [38]-[39] appeared to accept the applicant’s response and weighed the response in the applicant’s favour. There is no basis for the applicant’s complaint that the Tribunal failed to consider the applicant’s evidence or “acknowledge [the applicant’s] explanations”.
In conclusion, none of the grounds in the Judicial Review Application have reasonable prospects of success. This consideration weighs against reinstatement.
Prejudice to first respondent
It is stated at RS [41] that “the Minister … would not face any prejudice as a result of the reinstatement that could not be remedied by a costs order”. But, as correctly added at RS [41], “a lack of prejudice is not in itself a sufficient reason to grant reinstatement”.
Conclusion
As stated above, first, the applicant’s explanation or excuse for not appearing at the hearing on 20 August 2025 is not reasonable or adequate. Second, the applicant does not have arguable or reasonable prospects of success in relation to the Reinstatement Application. As stated in CAL15 at [4], “it is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case”. Similarly, in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18] North J stated, in relation to an application to reinstate an appeal, that if the appeal does not have a 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. Accordingly, the Reinstatement Application must be dismissed.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. Ms Liu stated that the first respondent’s solicitor/client costs are $2,814. She sought an order that the applicant pay the first respondent’s costs in the sum of $2,251.20, which is 80% of $2,814.
The applicant stated that he could not pay this amount in a lump sum, but may be able to pay the amount by instalments. That the applicant might have difficulty meeting a costs order “does not provide a principled basis for not making a costs order”: Masone v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 64 at [8]. The applicant, by filing and progressing the Reinstatement Application to hearing, has forced the first respondent to incur legal costs. His claimed limited financial position does not affect a determination of an appropriate amount in the present matter.
I consider the amount sought by the first respondent is reasonable. I will make an order in this amount.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 1 October 2025
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