Nareddula v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

[2024] FedCFamC2G 255

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Nareddula v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 255

File number(s):

MLG 524 of 2023

Judgment of:

JUDGE J YOUNG

Date of judgment:

20 March 2024

Catchwords:

MIGRATION – Application for review of a registrar’s decision – where application filed out of time – Temporary Graduate (Class VC) (Subclass 485) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that applicant did not satisfy cl 485.212 of Sch 2 of the Migration Regulations 1994 (Cth) – where visa application not accompanied by evidence that applicant had sat English language test within three years before the day on which visa application made – whether applicant denied natural justice – whether delegate considered circumstances beyond applicant’s control – whether jurisdictional error – found no jurisdictional error.

Legislation:

Migration Act 1958 (Cth) ss 360, 360A, 362B, 379A, 379C, 379G, 476(4)(a).

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(2).

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 13.13(a), 21.02(1), 21.04.

Migration Regulations 1994 (Cth) cl 485.212, 485.232, 485.233

Migration Amendment (Temporary Graduate Visas) Regulations 2020 (Cth) Sch 1, cl 20

Migration Amendment (Subclass 485 (Temporary Graduate) Visa Replacement Stream and Other Measures) Regulations 2022 cl 22.

Migration Amendment (Extension of Subclass 485 (Temporary Graduate) Visa and Increase in Subclass 500 (Student) Visa Work Hours) Regulations 2023 (Cth) cl 28.

IMMI15/062

Cases cited:

Australian Securities and Investments Commission v Cassimatis [2013] FCA 641

Baig v Minister for Immigration and Border Protection [2019] FCA 204

BZV21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 625

Da Costa Da Rocha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 206

Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 307

Minister for Home Affairs v DUA16 (2020) 271 CLR 550

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Minister for Immigration and Citizenship v Li [2013] HCA 18

Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439

Nareddula v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1086

NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592

Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473

Shah v Minister for Immigration and Multicultural Affairs [2022] FCA 1536

Singh v Minister for Immigration and Border Protection [2016] FCAFC 141

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 363

Spencer v The Commonwealth (2010) 241 CLR 118

SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Division:

Division 2 General Federal Law

Number of paragraphs:

85

Date of hearing:

25 January 2024

Solicitor for the Applicant:

Self-Represented Litigant

Solicitor for the Respondent:

Ms Liddy of Sparke Helmore Lawyers

ORDERS

MLG 524 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SAI ABHISHEK REDDY NAREDDULA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE J YOUNG
DATE OF ORDER:	20 MARCH 2024

THE COURT ORDERS THAT:

1.The applicant’s Application for Review of a Registrar’s decision filed 28 December 2023 be dismissed.

2.The applicant pay the first respondent’s costs in an amount to be fixed if not agreed.

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

1. This is an Application for Review of a Registrar’s decision filed on 28 December 2023 (Review Application).

2. The Application before the Registrar was an Application by the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), for summary dismissal of the applicant’s Application for judicial review filed on 24 March 2023 (Substantive Application).

3. 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 amount of $4,189.38.

4. 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.

   CONTEXT

5. The applicant is a citizen of India.

6. On 9 August 2021 the applicant applied for a Temporary Graduate (Class VC) (Subclass 485) visa (Visa). In support of his Visa application, the applicant provided confirmation that he was booked to sit an English language test, the Pearson Test of English Academic exam (PTE Academic test), on 2 September 2021.

7. In his Visa application, the applicant nominated a migration agent as his authorised recipient and provided the email address <[email protected]> (Migration Agent’s Email Address) for correspondence.

8. On 24 November 2021, the Department of Home Affairs (Department) sent a letter to the applicant by way of email to his Migration Agent’s Email Address, requesting he provide evidence regarding his meeting of the English language requirements for the Visa (24 November Letter). The applicant did not respond.

   Relevant statutory requirement of the Visa

9. The relevant statutory requirement for the grant of the Visa is that the applicant satisfy cl 485.212(1)(a) or (b) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).

10. Clause 485.212(1) of the Regulations at the relevant time provided as follows:

    (1)      The application was accompanied by evidence that:

    (a)       the applicant:

    (i)has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

    (ii)has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in 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.

11. For the purposes of cl 485.212(1) of the Regulations, the relevant legislative instrument, IMMI15/062, provided, relevantly, as follows:

    (1)For sub-paragraph 485.212(1)(a)(i) a PTE Academic test is a specified language test;

    (2)For sub-paragraph 485.212(1)(a)(ii) the PTE Academic test must be completed in a single sitting and the applicant must achieve a minimum overall score of 50, with a minimum score of 36 for each category (being listening, reading, speaking and writing); and

    (3)For sub-paragraph 485.212(1)(a)(ii) the PTE Academic test must have been undertaken within three years before the day on which the Visa application was made.

    (4)For sub-paragraph 485.212(1)(b) the applicant holds a valid passport issued by the United Kingdom, the Unites States of America, Canada, New Zealand, or the Republic of Ireland.

    Refusal of Visa on 23 March 2022

12. On 23 March 2022, a delegate of the Minister (Delegate) refused the Visa application. The decision record of the Delegate stated the reason for the Visa refusal was on the basis that the applicant had not successfully completed an acceptable English language test within the 3 years immediately before the day on which the Visa application was made, and as such, the applicant did not satisfy cl 485.212(1)(a)(i) of the Regulations.

13. On the same day the Delegate made the decision, a refusal notification letter, attaching a copy of the Delegate’s decision and information about the applicant’s rights of review, was sent to the applicant via his Migration Agent’s Email Address.

    Application for review to Administrative Appeals Tribunal on 8 April 2022

14. On 8 April 2022, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the Delegate’s decision. In the application for review, the applicant nominated a migration agent as his representative. The migration agent was the same migration agent listed as his authorised recipient in the Visa application, with the same nominated email address.

15. On 12 April 2022, the Tribunal sent correspondence to the Migration Agent’s Email Address, acknowledging receipt of the application for review. The covering email also requested the migration agent confirm the applicant’s email address with the Tribunal, as it had not been provided on the application for review. The Tribunal also noted it will always contact the listed recipient on file unless otherwise instructed.

16. On 12 January 2023, the Tribunal invited the applicant via his Migration Agent’s Email Address to attend a hearing scheduled for 21 February 2023 with an information sheet attached. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before the Tribunal.

17. On 21 February 2023, the applicant did not attend the scheduled hearing and the Tribunal proceeded to make a decision on the information before it.

18. On 22 February 2023, the Tribunal affirmed the Delegate’s decision not to grant the applicant the Visa.

    Tribunal’s decision

19. On 23 February 2023, the Tribunal sent a copy of the decision record to the applicant via his Migration Agent’s Email Address. The Tribunal determined that the issue before it was whether the applicant satisfied cl 485.212 of the Regulations.

20. The Tribunal recorded the applicant’s failure to attend and, noting the confined nature of the criterion in dispute, determined it was appropriate to proceed to make a decision.

21. The Tribunal found that there was no evidence the applicant held a passport issued by one of the countries as specified in IMMI15/062 (listed in paragraph 11(4) above) and as such cl 485.212(1)(b) of the Regulations was not met. Accordingly, the Tribunal determined that the applicant must meet cl 485.212(1)(a) of the Regulations.

22. The Tribunal noted the application for review attached a PTE Academic test result dated 13 December 2021, indicating the applicant obtained an overall score of 59.

23. The Tribunal found the applicant was required to have undertaken one of the specified English language tests and achieved the minimum specified scores within the three years before the day on which the application was made, as required by IMMI15/062.

24. The Tribunal found that the PTE Academic test taken on 13 December 2021 did not meet the requirement of having been undertaken within three years before the day on which the Visa application was made, being on 9 August 2021. On this basis, the Tribunal found that the applicant did not meet the requirements of cl 485.212 of the Regulations and therefore did not satisfy the criteria for the grant of the Visa. Accordingly, the Tribunal affirmed the Delegate’s decision not to grant the applicant the Visa.

    PROCEEDINGS IN THIS COURT

    Summary dismissal hearing on 23 November 2023

25. On 24 March 2023 the applicant filed the Substantive Application. In the Substantive Application, the applicant sought orders quashing the Tribunal’s decision and an order directing the Tribunal to determine the applicant’s application according to law.

26. In the Response filed 18 August 2023, the Minister sought orders that the Substantive Application be summarily dismissed pursuant to r 13.13 of the Rules.

27. The Summary Dismissal Application was heard by the Registrar on 23 November 2023. The applicant was legally represented at the hearing before the Registrar.

28. The Registrar summarily dismissed the Substantive Application on 24 November 2023: Nareddula v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1086 (Registrar’s Decision).

    Application for Review of a Registrar’s decision filed on 28 December 2023

29. The Review Application was lodged on 21 December 2023 and accepted for filing on 28 December 2023.

30. The Minister relies upon its written submissions filed 16 January 2024 with respect to the Review Application and the written submissions filed 9 November 2023 with respect to the Summary Dismissal Application.

31. The applicant appeared on his own behalf at the hearing on 5 February 2024, with the assistance of an interpreter in the Telugu and English languages where required.

32. The applicant relied on the following documents:

    (1)affidavit of the applicant filed 24 March 2023;

    (2)Outline of Submissions filed 21 November 2023;

    (3)affidavit of the applicant filed 21 November 2023;

    (4)Outline of Submissions filed 23 November 2023;

    (5)affidavit of the applicant filed 21 December 2023; and

    (6)affidavit of the applicant filed 24 January 2024.

33. The affidavit filed on 21 November 2023 is substantially the same as the affidavit filed on 24 March 2023.

34. The affidavit filed on 24 January 2024 was not filed in accordance with any Court orders. At the hearing, the applicant sought leave to rely on this affidavit, which, in the absence of any objection from the Minister, was granted. The applicant also provided certain documents following the hearing on 5 February 2024, which were not objected to by the Minister.

    Late filing of Application for Review of a Registrar’s Decision

35. Before turning to the Summary Dismissal Application, I address the preliminary issue of the late filing of the Review Application.

36. Rule 21.02(1) of the Rules provides that an Application for Review of a Registrar’s decision must be made within 7 days. Rule 21.02(2) provides that time may be extended in a proceeding by the Court “on any terms that the Court … thinks fit”.

37. The Registrar’s Decision was made on 24 November 2023. An Application for review of that decision in this Court was therefore required to be made no later than 1 December 2023. The Review Application was not lodged until 21 December 2023 and was not accepted for filing until 28 December 2023.

38. Accordingly, the Review Application was lodged 20 days after the expiry of the statutory timeframe and accepted for filing 27 days after the expiry of the statutory timeframe.

39. The Minister opposed any extension of time.

40. The applicant said that the reason for the late filing was, in summary, that he was seeking legal advice and was wrongly advised to appeal the Registrar’s Decision to the Federal Court of Australia (Federal Court). The applicant said that following the Registrar’s Decision his legal representative was unwilling to act for him further. Following consultation with his family, he sought to obtain alternate legal representation. He said that he contacted a number of migration lawyers including, on 25 November and 30 November 2023, however was unable to obtain representation. He said that one of the lawyers he spoke with, a Ms Zheng, advised him to appeal the Registrar’s Decision to the Federal Court. He said he contacted the Registry of the Federal Court on 7 December 2023 and asked for information on how to proceed with an appeal from a decision of this Court. On that date, he received an email from the Federal Court of Australia informing him that an appeal from a decision of this Court proceeded by way of a Form 121. He says he had further contact with the Registry of the Federal Court on 15 December 2023 and was again advised that an appeal proceeded by way of a Form 121. On 20 December 2023 he says that the Registry of the Federal Court informed him that he could not seek appeal of the Registrar’s Decision in the Federal Court and must apply for review of the Registrar’s Decision in this Court. The applicant lodged the Review Application the next day on 21 December 2023.

41. Ultimately, in the circumstances of this case, I am satisfied that it is appropriate for the time for filing the Review Application to be extended. This is in circumstances where the delay is not particularly lengthy, there is a satisfactory explanation for the delay, the applicant has not sat on his rights and has actively sought review of the Registrar’s Decision and there is no particular prejudice to the Minister (other than as to costs) if time were to be extended.

    SUMMARY DISMISSAL PRINCIPLES

42. In considering an Application for summary dismissal either under rule 13.13(a) of the Rules or under s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), it is necessary to establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: Spencer v The Commonwealth (2010) 241 CLR 118 (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.

43. 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

44. In his Substantive Application, the applicant raises the following grounds (without amendment):

    1.Natural Justice – The Administrative Appeals Tribunal has failed on their duty to act fairly and acted under imputed bias based on the decision made by the Department of Home Affairs. The events unfolded were beyond applicants control and the Tribunal has not given any weight for repercussions occurred due to Covid-19. The applicant made the application to the Department of Home Affairs during COVID-19 pandemic event and had flexible criteria for producing English Language exams during the process.

    2.Irrationality and unreasonableness – The whole assessment of application has procedural impropriety. The Tribunal did not consider fairness related to the current matter. The applicant could not attend any English Language exams due to Covid – 19 lockdowns in Melbourne. The applicant lodged a Subclass 485 Temporary Graduate Visa application on 09 August 2021 enclosing a confirmation from Pearson PTE for 02 September 2021. Subsequently, the applicant received a cancellation his English exam appointment on 18 August 2022 due to Covid -19 lockdowns in Melbourne. The Tribunal or the Department of Home Affairs did not consider any of the circumstances related to Covid – 19 impact which is beyond the applicant’s control. The applicant missed the Tribunal hearing since his representative failed to inform on time.   

    3.Not taking relevant matters into consideration – The applicant submitted an English Language exam within the requested time from the Department of Home Affairs in 2021. The applicant couldn’t book any English Language exams before due to lockdowns in the city of Melbourne. The Department of Home Affairs refused the application without considering the submitted English Language exam and other circumstances led to possible delays. The applicant applied for a Tribunal review after receiving a refusal on his SC485 Visa under guidance of his representative. The Tribunal contacted the representative directly for a hearing date in 2023 and the representative failed to inform the applicant on time. The applicant could not attend the hearing and the Tribunal decided in favour of the Department of Home Affairs without providing any considerations for circumstances beyond applicant’s control.

1. It is apparent that there is considerable overlap between Grounds One, Two and Three and at the hearing the applicant made lengthy oral submissions in support of those grounds. Those submissions replicated the substance of the above grounds and otherwise replicated matters already included in the materials filed by the applicant.

2. In addition, the applicant’s affidavits filed on 24 March 2023 and 21 November 2023 also contain challenges to the Tribunal’s Decision. However, the substance of the matters raised in those affidavits is encapsulated in the above grounds and are considered in that context below.

   Ground One

3. By Ground One, the applicant asserts he was denied procedural fairness by the Tribunal and that the Tribunal’s decision is affected by bias. The applicant contends this unfairness and bias is due to the Tribunal failing to take into account that the COVID-19 pandemic made the applicant unable to satisfy cl 485.212 of the Regulations and that this was beyond his control.

4. The Tribunal acknowledged at paragraph [14] of its decision that the applicant provided a PTE Academic test result indicating he had satisfied the minimum overall score and the minimum scores for each category. However, as noted in the Tribunal’s Decision, the PTE Academic test was undertaken after the Visa application. The Visa application was made on 9 August 2021; the applicant sat the PTE Academic test on 13 December 2021. Clause 485.212(1)(a) requires the applicant to undertake the PTE Academic test before the Visa application. Clause 485.212 imposes mandatory, objective criteria for the grant of the Visa which the Tribunal has no power to waive: Da Costa Da Rocha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 206 at [56] (Da Costa); Baig v Minister for Immigration and Border Protection [2019] FCA 204 per Bromwich J at [12(5)] - [12(6)] and [12(9)] (Baig). There was no evidence before the Tribunal that the applicant had completed an English language test in the three years immediately before the Visa application was made, being the timeframe required by cl 485.212(1)(a)(ii) of the Regulations, and his evidence before both the Tribunal and before this Court is that he had not. The reasons why the applicant was unable to satisfy the requirements of cl 485.212(1)(a) of the Regulations, including that he was unable to sit the test prior to December 2021 due to COVID-19 restrictions, the fact that the first test appointment on 2 September 2021 was cancelled on 18 August 2021 due to COVID-19 restrictions, and that he could not subsequently reschedule the appointment prior to December 2021 due to COVID-19 restrictions, are not relevant in the absence of any discretion to grant the Visa: Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 307 at [26] and [30] (Kumar). This aspect of Ground One therefore has no reasonable prospects of success.

5. Ground One further asserts that at the time of his Visa application, the Department had “flexible criteria for producing English Language exams during the process”. The applicant relies upon a joint media release by Minister Trudge, the then Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Minister Tehan, the then Minister for Education, dated 20 July 2020. That media release is entitled “Supporting international students to support Australian jobs” and, relevantly, provides as follows:

   The Morrison Government is making a number of changes to student visa arrangements to ensure Australia remains a priority destination for international students as we emerge from the COVID-19 pandemic.

   …

   The changes include:

   …

   •Additional time will be given for applicants to provide English language results where COVID-19 has disrupted access to these services.

6. Further, in oral submissions the applicant submitted that some of his friends had applied for and been granted a visa without having sat an English language test at the time at which the visa application was made.

7. This aspect of Ground One also has no reasonable prosects of success.

8. Firstly, the Delegate’s decision not to grant the Visa cannot be judicially reviewed by this Court as it was a “primary decision” within the meaning of s 476(4)(a) of the Migration Act 1958 (Cth) (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].

9. Secondly, although cl 485.212 of the Regulations has been amended three times since the outbreak of COVID-19, none of those amendments are of assistance to the applicant. Indeed, the applicant conceded at the hearing that there had been no applicable amendments to the law. Schedule 1 to the Migration Amendment (Temporary Graduate Visas) Regulations 2020 (Cth) (2020 Regulations) commenced on 20 January 2020 and applied to visa applications made on or after 20 January 2020. As set out above, the applicant’s Visa application was made after this date. Clause 20 of the 2020 Regulations added clause 485.212(2) to the Regulations, which provided that cl 485.212(1) did not apply to an applicant who meets the requirements of new cl 485.232 or cl 485.233. The Tribunal was aware of the changes to the subclass 485 visa scheme brought about by the 2020 Regulations. At paragraphs [9]-[10] of its decision the Tribunal refers to these changes and correctly concluded that the applicant did not meet the requirements of cl 485.232 or cl 485.233 of the Regulations as they applied to applicants applying for a second subclass 485 visa and, therefore, the applicant had to meet the requirements of cl 485.212(1) of the Regulations. The second set of amendments were introduced by the Migration Amendment (Subclass 485 (Temporary Graduate) Visa Replacement Stream and Other Measures) Regulations 2022 (2022 Regulations) and commenced on 1 July 2022. Pursuant to cl 22, the 2022 Regulations only applied to an application for a subclass 485 visa made on or after 1 July 2022. As the applicant’s Visa application was made on 9 August 2021, the 2022 Regulations did not apply to his Visa application. Further amendments were introduced by the Migration Amendment (Extension of Subclass 485 (Temporary Graduate) Visa and Increase in Subclass 500 (Student) Visa Work Hours) Regulations 2023 (Cth) (2023 Regulations) and commenced on 1 July 2023. Pursuant to cl 28, the 2023 Regulations only applied to an application for a subclass 485 visa made on or after 1 July 2023. Again, as the applicant’s Visa application was made on 9 August 2021, the 2023 Regulations did not apply to his Visa application.

10. Finally, as to the assertion that visas have been granted in circumstances where the requirements of cl 485.212 of the Regulations have not been met, firstly there is no probative evidence of this before the Court. Secondly, and most significantly, even if it be the case that subclass 485 visas were granted to persons who did not meet the requirements of the Regulations or in circumstances where the requirements of cl 485.212 of the Regulations were misconstrued, this does not establish error by the Tribunal in affirming the refusal of the Visa. In the applicant’s case, the Tribunal correctly applied the criteria in cl 485.212(1)(a) and correctly concluded that the applicant did not meet the criteria in cl 485.212(1)(a)(ii) of the Regulations.

11. It follows that Ground One has no reasonable prospects of success.

    Ground Two

12. Ground Two alleges that the Tribunal’s decision was irrational and unreasonable, that the Tribunal did not consider “fairness” and that the applicant could not attend any English language exams due to COVID-19. Ground Two also alleges that the applicant did not attend the hearing before the Tribunal because his representative did not inform him of it.

13. The Tribunal’s decision was neither irrational nor unreasonable. As set out above, the applicant concedes that at the time of making the Visa application he had not undertaken a PTE Academic test within three years before the day on which the Visa application was made, as is required by cl 485.212(1)(a) of the Regulations. In those circumstances, and in circumstances where the applicant was not a holder of a United Kingdom, United States of America, Canadian, New Zealand or Irish passport (as alternatively provided for in cl 485.212(1)(b) of the Regulations), the Tribunal’s finding that he did not meet the requirements of cl 485.212 was the only one open to it. As set out in paragraph [48] above, the reasons for the applicant not meeting those requirements were not matters the Tribunal could take into account: Kumar; Baig; Da Costa. This aspect of Ground Two has no reasonable prospects of success.

14. Insofar as Ground Two raises complaint about the Tribunal not affording “fairness” with respect to the English language test and the impact of COVID-19, I refer to and repeat my comments set out in paragraphs [48] and [53] above. This aspect of Ground Two therefore also has no reasonable prospects of success.

15. Insofar as Ground Two asserts procedural unfairness due to the applicant’s migration agent failing to advise him of the Tribunal hearing and his non-attendance, there is no obligation upon the Tribunal to make any inquiry as to the failure on the part of the applicant to appear: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 at [21]; Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [38]-[39] (SZFHC).

16. The Tribunal complied with its procedural fairness obligations under Part 5 Division 5 of the Act. The applicant was invited to a hearing in compliance with ss 360 and 360A of the Act. The invitation:

    (a)complied with s 360A of the Act as it gave the applicant notice of the day on which and the time and place at which he was scheduled to appear;

    (b)the period of the notice was greater than the prescribed 14 days;

    (c)it contained a statement to the effect of s 362B of the Act; and

    (d)was sent to him by email to the email address for his authorised recipient, being “the last… email address… provided to the Tribunal… in connection with the review” for the purposes of s 360A(2)(a) and s 379A(5)(b) of the Act.

17. Pursuant to ss 379A(5), 379C(5) and 379G(1) of the Act, the hearing invitation letter is therefore taken to have been received by the applicant at the end of the day on which the letter was transmitted to the authorised recipient’s email address (being the Migration Agent’s Email Address). The fact that the email was, on the applicant’s evidence, diverted to his representative’s “spam” email folder is of no significance.

18. Having complied with the legislative requirements under the Act, the Tribunal was not required to take additional steps or make further enquiries to ensure the applicant was aware of the scheduled hearing or enable him to appear: SZFHC at [38]-[39].

19. It follows that this aspect of Ground Two has no reasonable prospects of success.

20. Insofar as Ground Two asserts the Tribunal did not consider circumstances related to COVID-19, for the reasons set out earlier in this decision these matters were not relevant to the Tribunal’s consideration. With respect to the same assertion as against the Department, the Delegate’s decision cannot be judicially reviewed by this Court as noted above at paragraph [52]. This aspect of Ground Two has no reasonable prospects of success.

21. In oral submissions and in his written submissions filed on 21 November 2023, the applicant contends that the Tribunal erred in not “reinstating” his application upon request by his representative following the Tribunal’s Decision, notwithstanding that the application for reinstatement was made within 14 days after receiving the Tribunal’s Decision. This submission is misconceived and has no reasonable prospects of success.

22. Pursuant to s 362B(1) - (1A) of the Act, if an applicant is invited under s 360 to appear before the Tribunal but does not appear, then, pursuant to s 362B(1A)(a) the Tribunal may make a decision on the review proceedings or, pursuant to s 362B(1A)(b) the Tribunal may dismiss the proceedings. If the Tribunal dismisses the proceedings then, pursuant to s 362B(1B) of the Act, the applicant may apply for reinstatement of the application within 14 days of receipt of the dismissal decision. In the present case, the Tribunal did not dismiss the application pursuant to s 362B(1A)(b); rather, it proceeded to make a decision on the review proceedings without taking any further action to allow or enable the applicant to appear before it pursuant to s 362B(1A)(a) of the Act. As the Tribunal did not dismiss the applicant’s application the Tribunal had no power to reinstate the application. Upon delivering its decision, the Tribunal was functus officio and there is no further function authorised under the Act for the Tribunal to carry out: BZV21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 625 at [27]; SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [21]. It follows that this aspect of Ground Two has no reasonable prospects of success.

23. The power under s 362B(1A) is conditional upon the applicant having been validly invited to appear pursuant to s 360 of the Act: Shah v Minister for Immigration and Multicultural Affairs [2022] FCA 1536. For the reasons set out in paragraph [60] above, the hearing invitation provided to the applicant complied with the requirement of ss 360 and 360A of the Act.

24. Further, I consider that the exercise of that power was reasonable and the applicant does not have any reasonable prospects of establishing it was not so at final hearing. Where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Minister for Immigration and Citizenship v Li [2013] HCA 18 at [105]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [44]-[45] (Singh). The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].

25. At paragraph [6] of its decision, the Tribunal provided its reasons for proceeding to determine the review without the applicant appearing, saying:

    The applicant did not attend the hearing on 21 February 2023, and the Tribunal has received no further information from him to date. The Tribunal considered whether to defer making its decision, but given the confined nature of the criterion in dispute, it determined that it was appropriate to proceed to a decision without deferring for a further period.

26. The only question before the Tribunal was whether the applicant met the criteria in cl 485.212 of the Regulations. This is expressly recognised by the Tribunal by its reference to the “confined…criterion in dispute”. The applicant’s evidence before the Tribunal confirmed that he did not have the necessary PTE Academic test at the time the Visa application was lodged. Accordingly, the applicant’s evidence confirmed that he did not and, (irrespective of whether he appeared before the Tribunal) could not, meet the criteria in cl 485.212 of the Regulations. As already set out, the reasons for that failure are not relevant. In those circumstances, I consider the Tribunal’s reasons disclose an evident and intelligible justification for exercising the power in s 362B(1A) of the Act.

27. Accordingly, Ground Two has no reasonable prospects of success.

    Ground Three

28. By Ground Three, the applicant asserts the Department refused the Visa application without considering the difficulties faced by him in taking the PTE Academic test due to COVID-19. As noted above at paragraph [52], the Delegate’s decision cannot be judicially reviewed by this Court. To the extent that this ground contends that the Tribunal erred in failing to consider the applicant’s ability to satisfy the requirements of cl 485.212 of the Regulations were due to the impacts of COVID-19 and were beyond his control, I have addressed those contentions earlier in this decision. This aspect of Ground Three has no reasonable prosects of success.

29. Insofar as Ground Three asserts procedural unfairness with respect to the Tribunal contacting the migration agent directly, the applicant appointed the migration agent as his authorised recipient. In that context, I refer to and repeat paragraphs [59] – [62] above. This aspect of Ground Three has no reasonable prosects of success.

30. In oral submissions the applicant contended that the Department erred because he did in fact submit evidence of the PTE Academic test within 90 days of the Department’s request for evidence, as set out in the 24 November Letter. As already set out, the Delegate’s decision cannot be judicially reviewed by this Court. To the extent that this ground contends that the Tribunal erred on this basis, this submission is misconceived and has no reasonable prosects of success. The 24 November Letter identified that further information regarding the English language requirements for the subclass 485 visa was required and relevantly, provided as follows:

    In order to meet English language requirements, you must provide one of the following items of evidence:

    …

    •Evidence of having achieved an overall score of at least 50 with no score below 36 in each of the four test components of a Pearson Test of English (PTE) Academic that was conducted in the three years immediately before the day on which your application was made.

    …

31. The applicant concedes that he did not at any time provide a PTE Academic test that was conducted in the three years immediately before the day on which his Visa application was made. That is what was required by cl 485.212 of the Regulations. The provision of a non-compliant PTE Academic Test, irrespective of whether it was provided within 90 days of the 24 November Letter, is irrelevant and cannot satisfy the requirements of the Regulations.

32. I have earlier addressed the applicant’s contentions as to the Tribunal proceeding in the applicant’s absence and refer to and repeat those comments here.  

33. Ground Three also contends that the applicant’s non-appearance was due to his migration agent failing to inform him of the Tribunal hearing. In his affidavit of 21 December 2023 the applicant refers to the hearing invitation stating that the migration agent “should ensure that the applicant is informed of this invitation as soon as possible”. He submits that due to the migration agent’s failure he lost the opportunity to fairly represent himself. I accept that the applicant’s migration agent did not inform the applicant of the hearing. The applicant’s evidence, which I accept, is that the migration agent told him he was overseas at the time the invitation was sent to the Migration Agent’s Email Address, the Tribunal’s email went to the migration agent’s spam folder and he did not see it as he did not check his spam folder. However, for the following reasons the applicant has no reasonable prospect of establishing fraudulent conduct by the migration agent that might vitiate the Tribunal’s decision. Firstly, any allegation of fraud must be clearly pleaded and established by evidence: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [15] (SZDFE). The applicant at no point contends that the conduct of the migration agent is fraudulent. At its highest, the applicant’s evidence is that the migration agent “misguided and misrepresented” him. Secondly, bad or negligent advice or some other mishap that leads to detriment to the applicant is not sufficient: Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [15]. Further, before relief is granted it is necessary to find that “the agent’s conduct is not only a fraud on the visa applicant but must also stultify one or more aspects of the relevant statutory decision-making processes under the Migration Act”: Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 at [52]. Taking the applicant’s evidence at its highest the conduct of the migration agent objected to is negligent, an oversight or a mistake. Such conduct does not establish fraud and is not capable of stultifying or vitiating the Tribunal’s process. Finally, I have earlier addressed the Tribunal’s power under s 362B(1A) of the Act to determine the review without allowing or enabling the applicant to appear, together with whether the Tribunal exercised that power reasonably. I refer to and repeat those comments here. For all of those reasons, this aspect of Ground Three has no reasonable prospect of success.

1. In oral submissions and in his affidavit of 21 December 2023 the applicant also contended that his migration agent advised him to:

   (1)apply for the Visa with a booking confirmation for the PTE Academic test; and

   (2)sit the PTE Academic test in December 2021.

2. The applicant does not contend at any point that the above complained of advice was fraudulent. Further, I do not consider that the applicant has reasonable prospects of establishing at a final hearing that the most probable inference to be drawn from this evidence is that the migration agent’s conduct in giving the applicant the above advice was fraudulent. There is simply nothing arising from the evidence before this Court to support the drawing of that inference. I consider the migration agent’s conduct could just as easily be bad or negligent advice. It follows that this aspect of Ground Three has no reasonable prospect of success.

3. Accordingly, Ground Three has no reasonable prospect of success.

   Other matters

4. As set out above, the applicant was granted leave to rely upon the affidavit filed on 24 January 2024. That affidavit comprised submissions as to a range of matters, the substance of which has already been addressed in this decision or which are not presently relevant (for example, error said to have arisen in the Registrar’s Decision).

5. In addition, the affidavit annexes a number of cases. Those cases have either been referred to in this decision, are not relevant or do not assist the applicant. The applicant particularly drew the Court’s attention to the decision of the High Court of Australia in SZDFE (referred to in paragraph [77] above) included at Annexure 5 of the 24 January 2024 affidavit. The applicant relies upon SZDFE to submit that he ought not “suffer due to his Agent’s fault in not attending [the] hearing before the Tribunal”. For the following reasons this submission is misconceived. First, the conduct complained of must be proven by the applicant to be fraud. As already set out, the applicant does not contend at any point that the migration agent’s conduct was fraudulent. Further, his own evidence is that the migration agent was overseas and did not see the email because it went into the agent’s spam folder. There is therefore no evidence of fraud or dishonesty before the Court and no evidence to support an inference of fraudulent conduct being drawn. Bad or negligent advice or some other mishap that leads to detriment to the applicant is not sufficient. Secondly, the fraud must be occasioned on not only the applicant but also on the Tribunal, such that the decision of the Tribunal to proceed in the absence of the applicant might not have been made if it had known about the agent’s conduct. As also already set out, the Tribunal made a decision on the review without the applicant appearing before it because the only question before it was whether the applicant met the requirements of cl 485.212 of the Regulations. It is uncontested that he did not. The reasons why the applicant did not meet the requirements are not relevant. Nothing the applicant may have put to the Tribunal could have changed the Tribunal’s decision. Accordingly, not only was no fraud occasioned upon the applicant, the migration agent’s conduct could in no way vitiate or stultify the Tribunal’s statutory decision-making processes.

   DISPOSITION

6. For the reasons set out above, I find that the applicant’s Substantive Application has no reasonable prospects of success.

7. Accordingly, the Application for Review of the Registrar’s Decision must be dismissed.

8. The Minister seeks an order that the applicant pay their costs. I shall order that the applicant pay the Minister’s costs in an amount to be fixed if not agreed.

I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

Associate:

Dated:       20 March 2024