Mundru v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 837
•5 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mundru v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 837
File number(s): MLG 2089 of 2019 Judgment of: JUDGE J YOUNG Date of judgment: 5 June 2025 Catchwords: MIGRATION – application for review of a Registrar’s decision – hearing de novo of first respondent’s application for summary dismissal – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – Student (Temporary (Class TU) (Subclass 500) visa – where Registrar summarily dismissed the applicant’s application for judicial review – found grounds of substantive application had no reasonable prospects of success – application dismissed. Legislation: Migration Act 1958 (Cth) ss 357A, 357A(1), 359, 359B, 359C, 359C(1), 360(3), 363(1)(b), 363A, 379A(5)(b), 379A(5)(d), 424A, 476(1), 476(4)(a)
Migration Regulations 1994 (Cth) sch 2 cll 500.211(a), 500.212, 885.21
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), 21.04
Cases cited: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
Craig v South Australia [1995] HCA 58
Mundru v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 589
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
SAAP v MIMIA [2005] HCA 24
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 363
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
Thummala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 828
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 14 May 2025 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Mintz of Clayton Utz Second Respondent: Submitting appearance save as to costs ORDERS
MLG 2089 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAMBABU MUNDRU
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
5 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
2.The Application for Review of a Registrar’s decision filed 8 May 2025 is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the amount of $2,435.81
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 J YOUNG
INTRODUCTION
Before the Court is an Application for Review of a Registrar’s decision filed on 8 May 2025 (Review Application).
The application before the Registrar was an Application by the first respondent (Minister) for summary dismissal of the applicant’s application for judicial review filed on 2 July 2019 (Substantive Application).
On 22 April 2025, the Registrar made orders for the Substantive Application to be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) and that the applicant pay the Minister’s costs fixed in the sum of $4,189.38.
Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, the Minister’s Application for summary dismissal (Summary Dismissal Application) is to be considered afresh.
BACKGROUND
The applicant is a citizen of India.
On 30 August 2017, the applicant applied for a Student (Temporary (Class TU) (Subclass 500) visa (Visa). In his Visa application, the applicant nominated a migration agent as his authorised recipient and provided the email address [email protected] (representative’s email address) for correspondence.
On 22 November 2017, a delegate of the Minister (Delegate) refused to grant the Visa on the basis that the applicant did not satisfy cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 500.212 of sch 2 of the Regulations required the Delegate to be satisfied the applicant was a genuine temporary entrant (GTE).
On 22 November 2017, the applicant applied to the Tribunal for review of the Delegate’s decision and appointed the same migration agent to act as his representative. In the application for review, the applicant nominated the representative’s email address for correspondence.
On 3 April 2019, the Tribunal sent a letter to the applicant by way of email to the representative’s email address, inviting the applicant to provide information about his proposed course of study and his entry and stay in Australia as a student pursuant to s 359 of the Migration Act 1958 (Cth) (Act) (s 359 Invitation). The Tribunal requested that this information be provided by 17 April 2019 and advised the applicant that any request for an extension of time to provide the information must also be received by 17 April 2019. The s 359 Invitation also informed the applicant that if the Tribunal did not receive the information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain the information. Further, the applicant was informed that if the Tribunal did not receive the information, he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. Neither the applicant nor his representative provided a response to the s 359 Invitation.
On 12 June 2019, the Tribunal affirmed the decision of the Delegate to refuse to grant the applicant the Visa. On 13 June 2019, the Tribunal sent a copy of its decision to the applicant via the representative’s email address.
Tribunal decision
The Tribunal issued its statement of decision and reasons on 12 June 2019 (Tribunal Decision).
At paragraphs [1] – [5] of the Tribunal Decision, the Tribunal summarised the procedural background of the matter.
At paragraph [6] of the Tribunal Decision, the Tribunal found that the applicant did not provide a response to the s 359 Invitation within the prescribed period nor was an extension sought or granted. In those circumstances, the Tribunal noted that s 359C of the Act applied and pursuant to s 360(3) the applicant was not entitled to attend a hearing and pursuant to s 363A, the Tribunal had no power to permit him to appear.
At paragraphs [7] – [10] of the Tribunal Decision, the Tribunal decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review to allow the applicant additional time to provide further evidence as it considered the applicant had a fair opportunity to provide the relevant information. The Tribunal proceeded to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.
At paragraphs [13] – [15] of the Tribunal Decision, the Tribunal set out the relevant law, including the requirement of cl 500.211(a). Clause 500.211(a) of sch 2 of the Regulations required the Tribunal to be satisfied that the applicant was enrolled in a registered course of study at the time of its decision.
At paragraphs [16] – [17] of the Tribunal Decision, the Tribunal found there was no evidence before it that the applicant was enrolled in a course of study and concluded that cl 500.211 of sch 2 of the Regulations was not met. For those reasons, the Tribunal found the applicant did not meet the criteria for the grant of the Visa and affirmed the decision under review.
PROCEEDINGS IN THIS COURT
On 2 July 2019, the applicant filed the Substantive Application. In the Substantive Application, the applicant sought orders quashing the Tribunal Decision.
In the Amended Response filed 4 March 2025, the Minister sought orders that the Substantive Application be summarily dismissed pursuant to r 13.13 of the Rules.
Summary dismissal hearing on 22 April 2025
The Summary Dismissal Application was heard by the Registrar on 22 April 2025. The applicant was self-represented at the hearing before the Registrar and was assisted by an interpreter in the Telugu and English languages. On the day of the hearing, the Registrar summarily dismissed the Substantive Application and provided written reasons (Registrar’s Decision): Mundru v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 589.
Application for Review of a Registrar’s decision filed on 8 May 2025
The Review Application was lodged on 28 April 2025 and accepted for filing on 8 May 2025.
The Minister relies upon its written submissions filed on 24 March 2025 with respect to the Summary Dismissal Application.
At the hearing of the Review Application, the applicant appeared on his own behalf with the assistance of an interpreter in the Telugu and English languages.
The applicant relied on the following documents:
(1)Substantive Application filed on 2 July 2019; and
(2)affidavit annexing a copy of the Tribunal Decision filed on 2 July 2019.
SUMMARY DISMISSAL PRINCIPLES
Rule 13.13(a) provides that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
…
(Emphasis added).
In considering an application for summary dismissal under r 13.13(a) of the Rules, it is necessary to establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 (Spencer); Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przybylowski). It is not necessary for the Court to be satisfied that the applicant is bound to fail. In Spencer, the majority in the High Court said at [59]:
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power…
(Emphasis added.)
The discretion to summarily dismiss an application must be exercised with caution given it is an order made at a preliminary stage in proceedings in the absence of a full and complete factual matrix and argument: Spencer; Przybylowski. However, what is required is “a critical examination of the available material to determine whether there is a real question of law or fact which should be decided at trial”: Spencer; Przybylowski; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46]. The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success.
GROUNDS OF REVIEW
In the Substantive Application, the applicant raises the following grounds (without amendment):
1.I am seeking judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 12 June 2019. In that decision, the Tribunal did not assess the decision according to the act of the delegate to refuse my student visa (500 Subclass).
2.Initially, Delegate of Department of Home Affairs (DIBP) did gave the decision which is wrong because Delegate did not understood my situation why I came to Diploma course from Masters education. Also Delegate did not understand my problem how I could not get the E-coe for Masters program in Australia which led me to lodge visa application to study the Diploma level Studies, which was refused later and it is on record.
3.More over case officer of DIBP failed to follow Code of procedure for dealing fairly, efficiently. In same manner Tribunal did as well. I know Tribunal did request me to submit the E-coe under s.359 of the act. , I know my studies are finished ( Diploma studies ) , college is not issuing the certificate. Second thing is I could not get the Admission in Master’s program. That is the reason I could not submit the Coe to the Tribunal. As same law applies on tribunal , during the processing of application under s56 (2) of Migration Act 1958 Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way. According to law I deserved a fair chance to explain at hearing with oral submission. But Tribunal never gave me chance to present my circumstance orally at the Hearing. Therefore , I feel Tribunal decision has lack of procedural fairness.
4.Coe can be submitted on Hearing date will meet the criterion of 500 subclass , then it consistent with the principles set out earlier in Berenguel 264 ALR 41 7; (2010] HCA 8 at [24]-[27] and the Tribunal acting on the most up-to-date information.
5.In my case, Tribunal did not provide me fair chance while hearing to explain my situation and circumstances. under s.359 of the Migration Act 1958 (Cth) also says that tribunal should provide the applicant fair chance at hearing to explain the situation and circumstances. Here in my case it did not happen. therefore I believe that my application is eligible for judicial review, this advice was taken by solicitor .
6.I believe the decision-maker and tribunal both failed to follow mandatory procedures “SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]” - [208]; and also decision-maker and tribunal both identified the wrong issue according my situation according to reference “Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198]. Therefore , Paragraph 6 of Tribunal decision is invalid where s.359, s.360(3) and s.363A are not applied validly on my case according to my situation. Therefore tribunal decision has Jurisdictional error.
7.I moved to Melbourne because of it is easy to get the admission for Masters program, in Brisbane there was little chance or no chance of getting the admission for Masters program as very few education providers in Brisbane.
8.All the documents and evidence has been submitted to tribunal and Immigration, in case of anything needed I will submit to the court later stage when I do the further submission after I hire solicitor.
It is noted that the Substantive Application only seeks an order that the Tribunal Decision be quashed and does not seek a writ of mandamus directed to the Tribunal. The Minister consents to the Substantive Application being amended for the applicant to seek the requisite relief to enliven the Court’s jurisdiction under s 476(1) of the Act. I address this matter below in paragraph [47].
CONSIDERATION
Insofar as the grounds seek review of the decision of the Delegate, the Delegate’s decision cannot be judicially reviewed by this Court as it was a “primary decision” within the meaning of s 476(4)(a) of the Act, in that it is a privative clause decision reviewable under Part 5 of the Act: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 363 at [20].
Ground 1
Precisely what is contended by Ground 1 is not clear and at the hearing the applicant was not able to further articulate this ground. If by Ground 1 the applicant contends that the Tribunal erred by determining the matter on a basis other than that upon which the Delegate determined it, that submission must be rejected. It was open to the Tribunal to determine the matter upon a different basis: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) CLR 152. The s 359 Invitation put the applicant on notice that the enrolment criterion may be determinative. Having concluded that the applicant did not satisfy cl 500.211(a), it was not necessary for the Tribunal consider whether the applicant satisfied the GTE criterion.
Accordingly, Ground 1 has no reasonable prospect of success.
Grounds 2, 7 and 8
Grounds 2, 7 and 8 do not assert any jurisdictional error of the Tribunal. Insofar as Ground 2 seeks review of the Delegate’s decision, I refer to and repeat my comments set out at paragraph [29] above.
Accordingly, Grounds 2, 7 and 8 do not have any reasonable prospect of success.
Grounds 3 – 5
By Grounds 3 – 5, the applicant appears to submit that the Tribunal denied the applicant procedural fairness obligations by failing to invite him to a hearing. At the hearing in this Court the applicant confirmed this was the basis upon which he contended the Tribunal erred.
For the following reasons that submission must be rejected and has no reasonable prospects of success.
Section 357A of the Act (as it was at the relevant time) was headed “Exhaustive statement of natural justice hearing rule” and provided, relevantly, as follows:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
…
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
Accordingly, pursuant to s 357A(1) of the Act, Division 5- Part 5 of the Act (Division 5) is “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. As such, notions of common law procedural fairness do not apply in relation to the matters Division 5 deals with; although there can be no doubt that the Tribunal is required to apply the provisions of Division 5 in a fair and just way.
The Tribunal complied with its procedural fairness obligations under Part 5 Division 5 of the Act because, as submitted by the Minister:
(a)the Tribunal invited the applicant to provide information by sending the s 359 Invitation to the last email address in connection with the review (s 379A(5)(b), (d)): s 359 of the Act;
(b)in its s 359 Invitation, the Tribunal put the applicant on notice that it required the information as it was a requirement for the grant of the Visa that the applicant be enrolled in a course of study, and provided a time period and specific way in which the information is to be provided, being the completion of a linked form by 17 April 2019: s 359B of the Act;
(c)in its s 359 Invitation, the Tribunal put the applicant squarely on notice that if he did not provide the information within the time specified (or extended), it may make a decision on the review without taking further action to obtain the information, and that he would (in bolded text) lose any entitlement he might otherwise have had to appear at a hearing;
(d)as the applicant neither responded to the s 359 Invitation by 17 April 2019 nor requested an extension of time, the Tribunal was entitled to make a decision on the review without taking any future action to obtain the information pursuant to s 359C(1);
(e)as s 359C(1) applied to the applicant, the applicant was not entitled to appear before the Tribunal: s 360(3) of the Act; and
(f)as the applicant was not entitled to appear before the Tribunal, the Tribunal did not have the power to permit the applicant to appear before it: s 363A; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 at [29] per Jacobson, Gilmour and Foster JJ.
Accordingly, insofar as grounds 3 – 5 submit that the Tribunal erred by failing to hold a hearing, those grounds have no reasonable prospects of success.
Insofar as Ground 3 appears to submit that the Tribunal failed to consider particular circumstances of the applicant’s case, this ground must also be rejected and has no reasonable prospect of success. The requirement of cl 500.211(a) that an applicant be enrolled in an approved course of study is mandatory and, as such, the Tribunal had no discretion to waive that requirement or to take into account any circumstances which may have resulted in the applicant not being enrolled: Thummala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 828 at [57]. The Tribunal correctly determined that the applicant did not meet the requirements of cl 500.211(a) and no other considerations were relevant to that determination. At the hearing in this Court the applicant confirmed that at the time of the Tribunal’s decision he was not enrolled in a course of study. In any event, the applicant did not provide a response to the s 359 Invitation and as such, the personal circumstances of the applicant were not before the Tribunal and therefore no error can be said to arise in the Tribunal not taking into account this evidence.
As to the applicant’s reliance on Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (Berenguel) that reliance is misconceived. Berenguel concerned the construction of the English language requirement under cl 885.21 of sch 2 of the Regulations. The present matter concerns the enrolment criterion in cl 500.211(a) of the sch 2 of the Regulations. Had the applicant attended the hearing and provided evidence of enrolment, I accept that the Tribunal would have been required to find that the enrolment criterion was met. However, as already set out the applicant lost his right to attend a hearing before the Tribunal and, further, the applicant confirmed that he was not enrolled in a course of study at the time of the Tribunal’s decision.
Accordingly, Grounds 3 – 5 have no reasonable prospect of success.
Ground 6
By Ground 6 the applicant asserts that the Tribunal did not validly apply ss 359, 360(3) and 363A and that it made an error of the type identified in SAAP v MIMIA [2005] HCA 24; (2005) 228 CLR 294 (SAAP). The applicant further asserts that the Tribunal made an error of the type identified in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (Craig) by identifying "the wrong issue".
I have earlier addressed the provisions of ss 359, 360(3) and 363A and I refer to and repeat my comments in relation to them. The Tribunal correctly understood and applied those provisions.
As to SAAP and Craig, neither of these cases assist the applicant. SAAP concerned s 424A, the Part 7 equivalent of s 359A. Nothing was put to the applicant pursuant to s 359A in the present matter. In Craig the High Court defined jurisdictional error as “an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion”. At the hearing in this Court, the applicant was unable to identify any “wrong issue” that he contended the Tribunal had considered. The Tribunal correctly identified that the issue before it was whether the applicant met the enrolment criterion at the time of its decision.
Accordingly, Ground 6 has no reasonable prospect of success.
Relief claimed
In its written submissions, the Minister notes that the Substantive Application does not seek a writ of mandamus and that the applicant will need leave to amend the Substantive Application to include this relief. Given my conclusion that the Substantive Application has no reasonable prospects of success on any of the grounds advanced by the applicant, in addition to the Registrar’s decision made on 22 April 2025 to summarily dismiss the Substantive Application pursuant to r 13.13(a) remaining in full force and effect, the amendment would serve no utility.
DISPOSITION
For the reasons set out above, I find that the Substantive Application has no reasonable prospects of success.
Accordingly, the Application for Review of the Registrar’s Decision must be dismissed.
The Registrar’s Decision therefore remains in full force and effect.
The Minister seeks an order that the Applicant pay their costs in the amount of $2,435.81. I note that this is below the amount provided in sch 2 of the Rules. I shall order accordingly.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 5 June 2025
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