Partiksha v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 934
•18 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Partiksha v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 934
File number(s): SYG 1034 of 2021 Judgment of: JUDGE MCCABE Date of judgment: 18 June 2025 Catchwords: MIGRATION – student visa – application for review of a decision of the Administrative Appeals Tribunal – whether the Tribunal was unreasonable – whether the Tribunal erred in affording procedural fairness – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 360, 363
Migration Regulations 1994 (Cth) cl 500.213
Cases cited: Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629; [2019] HCA 16
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 28 May 2025 Place: Sydney Solicitor for the applicant: Mr G Bhatia, Ace Legal Partners Solicitor for the first respondent: Mr J Pinder, Mills Oakley Second respondent: Submitting appearance, save as to costs ORDERS
SYG 1034 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PARTIKSHA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
18 JUNE 2025
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $6,800.
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 MCCABE:
Ms Partiksha is an Indian citizen. She applied for a Student (Class TU) (Subclass 500) visa in 2019 after earlier entering Australia on a visitor visa. Her student visa application was rejected because a delegate of the first respondent (the minister) was not satisfied Ms Partiksha met the applicable English language proficiency requirements. Ms Partiksha sought review of that decision in the Administrative Appeals Tribunal in March 2020. While the review was on foot, she could have established proficiency in the form required under the legislation. She did not. After a lengthy delay, her case was listed for a hearing on 18 May 2021. The Tribunal affirmed the delegate’s decision following a hearing that lasted just 11 minutes.
The applicant argues the Tribunal’s decision is affected by material jurisdictional error because it was legally unreasonable. The unreasonableness was said to arise out of the Tribunal’s failure to grant an adjournment when requested, and because of its failure to properly explain the English language proficiency requirements and the alternative ways in which those requirements might be satisfied. For good measure, the applicant also alleged the failure to grant adjournments amounted to a denial of procedural fairness and a misapplication of the relevant law.
The Tribunal did not act unreasonably, nor did it deny the applicant procedural fairness. It did not misunderstand its role. The application for judicial review must therefore be dismissed. I explain my reasons below.
The source of the English language proficiency requirements
It would be helpful to discuss the relevant details of the English language proficiency requirements that are applicable to student visas before recounting the history of this case.
Clause 500.213(1) says the minister may require an applicant to give evidence she has a level of English language proficiency which meets the requirements specified in ‘an instrument under paragraph (3)(a)’. (The minister elected to make that demand of the applicant. I do not understand there to be any suggestion there was anything improper about the minister’s request in this case). Clause 500.213(2) goes on to say an applicant will be exempt from the requirement to provide evidence of English language proficiency if she falls within a class described in ‘an instrument under paragraph (3)(b)’. Sub-clause (3)(b) relevantly provides:
(3) The Minister may, by legislative instrument, specify:
(a) requirements for the purposes of subclause (1); or
(b) a class of applicants to which subclause (1) does not apply.
The instrument mentioned in cl 500.213 is the English Language Instrument (IMMI 18/015) (the instrument). Clause 6(1) of the instrument identifies the primary criteria which apply pursuant to cl 500.213(1). Clause 6(1) says an applicant must undertake one of the English language tests specified in Schedule 1 of the instrument. Clause 6(1) also requires the applicant to achieve a minimum score which might vary depending on whether the applicant had completed ELICOS courses. (The minimum score for each of the different tests was also specified in the Schedule.) Clause 6(2) identifies the classes of applicant who are exempt from the requirements.
The exempt classes in cl (6)(2) include (relevantly):
(b) an applicant who is enrolled in a principal course of study that is:
…
(ii) a registered ELICOS course, as defined in regulation 1.03 of the Regulations…
[emphasis added]
The applicant’s attempts to satisfy the English language proficiency requirements
The applicant was aware of the instrument when she applied to the Tribunal because the minister’s department told her about it in its letter to her dated 13 December 2019. A copy of the letter is reproduced in the court book at pp 34ff. The letter said the department needed more information about Ms Partiksha’s application so it could be processed. In particular, the letter told the applicant she was “required to provide evidence of [her] English language proficiency to achieve the relevant English language test score.” The letter referred to acceptable examples of English language tests. The letter went on to say the applicant would not need to provide a test score if she established that she fell into one of several classes of student. The letter explained the linked legislative instrument set out a full list of English language exemption categories.
The letter also asked the applicant to undergo health examinations and provide reports. Nothing turns on the health examination requirements for present purposes.
The applicant was given 28 days to respond to the request for information. On 8 January 2019, the applicant provided proof she had achieved an overall band score of 21 on a Pearson Test of English Academic (PTE) dated 4 November 2019. A PTE test is an approved test referred to in item 4 of sch 1 of the instrument. Item 4 of sch 1 says a candidate relying on a PTE test to satisfy the requirements must achieve an overall band score of “30, if packaged with at least 20 weeks ELICOS”. An applicant who achieved an overall band score of 36 could rely on a shorter period of ELICOS training, and the ELICOS training requirement was waived altogether if the applicant achieved an overall band score of 42.
The delegate’s decision to refuse the applicant’s visa was made on 27 February 2020. A copy of the decision and statement of reasons is reproduced in pp 47ff of the court book. The delegate said (correctly) an overall band score of 21 on a PTE test was insufficient. The applicant was found not to satisfy the English language proficiency requirement in those circumstances, which meant she could not satisfy cl 500.213 of the Regulations. She was therefore ineligible for a student visa.
I note the delegate provided what I take to be a clear summary of the operation of the instrument. The statement of reasons included a summary of the classes that attracted an exemption. The summary expressly mentioned the exemption referred to in cl 6(2)(b) of the instrument (i.e., a student who was enrolled in a principal course of study that is a registered ELICOS course).
Ms Partiksha sought review of the delegate’s decision in the Tribunal. The application for review was filed on 19 March 2020. The Tribunal acknowledged receipt of the application. Its letter of acknowledgement included an information sheet. The information sheet is reproduced in the court book at pp 55ff. Under the heading ‘Advice, assistance and representation’, the information sheet explained:
Our procedures are designed to be simple so that outcomes do not depend on whether applicants receive professional advice or assistance. However, you may choose to seek advice and assistance. We do not endorse or recommend any service provider. You should take care when selecting someone, and ask them to confirm whether they are a registered migration agent or are otherwise legally able to assist you. …
At the hearing before me, the applicant’s representative, Mr Bhatia, said the applicant was lulled into a false sense of security by that assurance. Mr Bhatia said Ms Partiksha felt assured the review process was such that she would not require professional assistance of any kind. (I leave to one side for now the fact Mr Bhatia did not refer to any evidence from the applicant that she actually formed that view at the time.)
The Tribunal wrote to Ms Partiksha again on 24 March 2020. A copy of the letter is reproduced in the court book at p 60. The letter asked the applicant to provide “[e]vidence that the primary applicant meets the English language requirements” by 21 April 2020. The Tribunal did not specify or summarise those requirements in its letter. The applicant was presumably on notice of the requirements given she was previously provided with a link to the instrument by the minister’s department. She also had the benefit of an explanation of what was required in the delegate’s decision record.
Ms Partiksha emailed the Tribunal on 17 April 2020 to ask for an extension of time to provide the requested information. She included the PTE test result that she had already achieved but indicated she wanted the opportunity to take the test again. She explained there was a delay before she could take a new test because of Covid restrictions. The Tribunal responded by email on 20 April 2020. The email acknowledged the applicant’s request for further time because of Covid and added: “Please provide an English language requirements result as soon as it will be available to you”: court book at p 68.
The applicant provided the results of a more recent PTE test on 12 July 2020. She achieved an overall score of 25 on that test. A copy of the email and the test results are reproduced in the court book at pp 77ff. That score was still not high enough to satisfy the requirements in the instrument, and the applicant did not assert an entitlement to an exemption.
The Tribunal’s hearing and decision
The Tribunal issued a hearing invitation on 30 April 2021. The invitation confirmed the Tribunal was unable to make a decision in the applicant’s favour given the information in the Tribunal’s file. A telephone hearing was scheduled for 18 May 2021 so the applicant could present further evidence and make arguments. The invitation letter (reproduced in the court book at pp 81ff) renewed the request that the applicant provide evidence that she met “the English language proficiency requirements as prescribed by the relevant legislative instrument”.
On 7 May 2021, the Tribunal was contacted by Ms Partiksha’s new representative, a firm of migration agents. The email (reproduced at p 89) advised the firm had just been appointed, adding:
… we do not have sufficient time to prepare for this urgent case (only 6 business days left). We respectfully seek for postponing the hearing to a future date.
It is unclear precisely when the applicant engaged the firm, but I infer the applicant only approached the firm after she received the hearing invitation. There was no explanation as to why the applicant had not approached the firm for advice at an earlier point. Mr Bhatia speculated from the bar table that the applicant’s failure to act sooner might have been because she believed she did not need a representative as a consequence of assurances from the Tribunal that its processes were easy for an unrepresented person to navigate. In any event, the Tribunal refused the request for an adjournment. It conveyed news of its decision on the adjournment application in a letter dated 10 May 2021: court book at pp 94ff. While the letter asserted the presiding member had considered the request carefully, the letter did not otherwise explain the decision to refuse the adjournment application. The letter went on to repeat the request that the applicant provide evidence that she met the English language proficiency requirements.
The hearing proceeded on 18 May 2021. It lasted 11 minutes. The applicant attended by phone and answered questions with the assistance of an interpreter. Her newly appointed representative was also present but said nothing of substance. The following account of what transpired at the hearing is based on the transcript which was tendered in these proceedings.
After the hearing commenced, the Tribunal offered an explanation of its role. It noted the applicant was present because the delegate had refused the application for a visa. The Tribunal then observed:
This Tribunal is independent of the Department. I am not bound by a decision of the Department. But I am required to apply the same law and I have no discretion to go outside the law. [Emphasis added]
I have bolded the end of the last sentence because Mr Bhatia argued on behalf of the applicant that this explanation of the Tribunal’s role suggested the Tribunal misunderstood its statutory duty. Mr Bhatia said that duty might extend to exercising a discretion to adjourn the proceedings where that was appropriate. He argued the Tribunal may not have realised it had that discretion, or it may have created the impression in the applicant that the Tribunal did not have such a discretion. I will return to that argument below.
The Tribunal then briefly discussed the delegate’s decision. The Tribunal noted the decision turned on a finding the applicant had failed to provide evidence of English language proficiency in accordance with the regulations. The Tribunal noted the applicant had recently provided a fresh PTE test result dated 11 May 2021. The applicant had achieved a score of 29 on that test. The Tribunal pointed out that was still lower than the minimum score required in the instrument. The Tribunal also acknowledged the applicant had undertaken a 12-week ELICOS program in 2020. It then invited the applicant to comment, saying:
So this is your opportunity Ms Partiksha. What did you want to say to the Tribunal in regard to your application?
The applicant replied (through an interpreter):
Um I belong to the country where our first language is not English but ah Hindi and then other languages ah regional language around me and then English comes third. Ah when I arrive in Australia ah my English was not good and it was hard to, yeah, and then I improved my English a lot and I would like to request you give me an opportunity of some time.
Mr Bhatia says the last line of that passage amounts to an application for an adjournment. If it was an adjournment request, the request was not made on the basis the applicant needed more time to get advice. She was plainly seeking more time than she had already been afforded to comply with the English language proficiency requirements, although I acknowledge she might also use such an opportunity to obtain advice as to how she might conveniently do that. In any event, the Tribunal plainly did not understand the applicant’s remark as a request for an adjournment, because the Tribunal responded by saying it would consider the evidence and make a decision. The Tribunal then asked the applicant’s representative if she wanted to say anything, but she said no. The representative did not take that or any other opportunity to request an adjournment or suggest there was an alternative pathway toward achieving proficiency that the applicant might conveniently explore. In the face of the representative’s silence, the Tribunal obviously decided it was able to conclude the hearing. It asked the applicant for any final comment. The applicant volunteered through her interpreter: “Ah mam is happy to take ten week of more ELICOS ah and I am to take ah that ELICOS training for 10 more weeks.”
Mr Bhatia said the applicant’s cryptic comment amounted to another request for an adjournment so the applicant could undertake more study. The Tribunal did not treat it as a request for an adjournment. It proceeded to conclude the hearing.
The Tribunal’s decision was made later that same day. The decision and reasons are reproduced in the court book at pp 121ff.
The reasons for decision run for a page and a half. The minister’s representative in these proceedings said the brevity of the hearing and decision are unsurprising because the Tribunal was faced with a simple binary question that was readily resolved. The key portion of the Tribunal’s decision is found in paragraphs [10]-[12]. The Tribunal said:
10.The Tribunal has considered all the material before it including evidence given prior to the hearing and evidence given at hearing. In particular the Tribunal has considered a PTE test score for her English language test dated 11 May 2021 which the applicant has provided. The score on this test was 29. The Tribunal notes that the instrument as above stipulates that the minimum test score in a test provided by a specified language test provider within the maximum time period is 30 if packaged with a suitable ELICOS course of at least 20 weeks in duration. The Tribunal also notes that the applicant has provided details of an English language course that she attended from 14 October 2019 until 3 January 2020, a course of 12 weeks in duration.
11.At hearing the Tribunal had a discussion with the applicant regarding this matter noting the above evidence and also noting that therefore the applicant had not met the required level of English language proficiency in accordance with the relevant instrument. The applicant stated that she knew that this was the case but that she comes from a country where the first language is Hindi but that she was happy to take an ELICOS course at some point.
12.The Tribunal has considered this evidence carefully and finds that the applicant has not achieved the required level in her recent test, as she reached a level of 29 which is not sufficient and that also she has not packaged it with an appropriate course in any case as the course was only a 12 week course undertaken in 2020, should she actually have reached a level of 30 in the test. The Tribunal finds that the key issue is that the applicant in reaching a level of 29 in her test has not reached the required level.
Having made those findings, the Tribunal concluded the applicant did not meet the criteria for the grant of a student visa. It affirmed the delegate’s decision.
Mr Bhatia pointed out the Tribunal did not at any point explain why it refused the request for an adjournment in advance of the hearing. The statement of reasons did not mention the applicant asking for an adjournment during the hearing, although it did mention in [11] that the applicant had offered to undertake further study.
The application for judicial review
The applicant filed an application for judicial review in June 2021. The amended application for review (filed on 19 May 2025) includes one ground that – somewhat awkwardly – contends the Tribunal’s decision was affected by at least three different errors. The decision is said to be “vitiated by legal unreasonableness” because the Tribunal unreasonably refused two requests for an adjournment. The applicant also claimed that denying the adjournments amounted to a denial of procedural fairness. The ground further alleged the Tribunal took the position it did because it misunderstood the law and its statutory role.
This omnibus ground was supported by an extensive list of particulars. In the particulars it was contended the Tribunal failed to provide the applicant with a copy of the instrument. While that is, strictly speaking, accurate, it is also irrelevant. As I have already explained, the applicant was provided with a link to the instrument by the minister’s department in the course of the process before the delegate. If there was any doubt in the applicant’s mind about the meaning and significance of the instrument, the delegate’s statement of reasons for decision included a summary of its contents. There could be no doubt in the applicant’s mind after receiving the delegate’s decision that the provisions of the instrument were critical to the outcome of her case in the Tribunal. When that was pointed out at the hearing before me, Mr Bhatia protested that the instrument was a complex document from the perspective of someone like Ms Partiksha who spoke English as a second language.
While the Tribunal is obliged to provide an interpreter at the hearing, it does not have a general duty to translate documents and legislation for an applicant in advance of a hearing. (On the contrary, the hearing invitation makes clear it is for the applicant to provide translated versions of documents on which they intend relying at the hearing.) The legislation does not contemplate the Tribunal providing advice about the legislation and its operation. The Tribunal is certainly not required to advise an applicant about alternative ways in which they might comply with the requirements governing a particular visa. There is nothing contained in the passages of the information sheet referenced by Mr Bhatia that would enlarge the Tribunal’s obligations in this regard.
When pressed on what else the Tribunal could have done to assist the applicant, Mr Bhatia returned to the adjournment. He ventured the Tribunal should have been more accommodating of Ms Partiksha’s requests for an adjournment so that she could seek proper advice.
Section 360(1) of the Migration Act 1958 (Cth) obliges the Tribunal to invite an applicant to appear at a hearing to give evidence and provide arguments in certain circumstances. Section 363(1) says the Tribunal’s powers in a hearing include a power to adjourn from time to time. The courts have made clear the opportunity to participate in a hearing pursuant to s 360 must be meaningful: see, for example, Minister for Immigration and Citizenship v Li [2013] HCA 18 at [61] per Hayne, Kiefel and Bell JJ. But the plurality in that case also says (at [82]):
It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. …
Whether or not an adjournment request is granted is therefore a matter for judgment. The question for the Court on review is whether the judgment was reasonable.
What does reasonableness mean in this context? Mr Bhatia referred me to the decision of the Full Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1. In that case, Allsop CJ, Robertson and Mortimer JJ explained (at [48]):
The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. …
That said, the Full Court turned to the power to grant an adjournment, explaining (at 53]):
The power in s 363(1) is expressly conferred on the Tribunal for the purposes of the review it is undertaking. It is to be exercised consistently, and not inconsistently, with the purposes of the review, which include the obligation in s 360 to offer a meaningful hearing to a visa applicant. Where the Tribunal considers the exercise of power in s 363(1)(b), the approach cannot be a generalised one: the particular context and circumstances of the review before it are what must inform the exercise of the power. …
Evaluating the reasonableness of the Tribunal’s decision becomes more complicated where the Tribunal does not actually articulate its reasons. While it is required to give reasons for its ultimate decision, it is not obliged to articulate its reasoning when dealing with procedural issues like requests for adjournments. If the Tribunal does not give reasons, the Court must look to the decision that was made and the circumstances which surround it to determine whether it was reasonable. That assessment will usually turn on whether there was an evident and intelligible justification for the course that was adopted.
In this case, there was an evident and intelligible justification for the Tribunal’s decision to refuse the adjournment request that was made in advance of the hearing. While it might have been preferable if the Tribunal had articulated those reasons in the letter it sent to the applicant’s representative on 10 May 2021, it was – with respect – glaringly obvious in the circumstances that the Tribunal was concerned at the last-minute request for an adjournment given the extensive delay that had already occurred. It was not surprising the Tribunal should give such a request short shrift when (a) the applicant’s case turned on a clearly-articulated binary question that an experienced migration agent should have been able to handle without extensive preparation; and (b) the applicant already had ample opportunity to seek advice if she wished. There is no mystery about why the Tribunal acted as it did.
There was nothing unconventional about the pre-hearing request for an adjournment, even if the Tribunal’s reasons for refusing it are clear. The applicant’s claim that she made requests for adjournments during the hearing is more complicated.
I have already noted the Tribunal plainly did not pause to expressly address either the applicant’s “request you give me an opportunity of some time” or her offer to undertake further training as if either or both were formal requests for an adjournment. Mr Bhatia argued before me that the applicant’s first request for “some time” should be regarded as a request for an adjournment so she could seek advice from her agent. Mr Bhatia suggested the applicant should have been given the opportunity to explore with her agent whether there were alternative ways in which the English language proficiency requirements might be satisfied. But there is no basis evident in the words spoken at the hearing for treating the request for “some time” as an application for an adjournment to obtain advice. The exchange that occurred at the hearing makes clear the applicant just wanted another chance to comply with the requirements as she understood them.
Experienced decision-makers are familiar with that sort of plea from desperate litigants: faced with the prospect of an imminent decision they do not like, they may seek further delay in the hope something – anything - might intervene to improve their prospects. Sometimes they attempt to revisit a ruling repeatedly. Expressions of disquiet or attempts at bargaining to forestall an outcome are no doubt genuine, but they might not of themselves amount to a request for a discreet application for an adjournment that the Tribunal must pause to address in detail.
The unreality of the applicant’s mid-hearing request – to the extent it was one – is underlined by the fact the representative did not offer any submissions in relation to an adjournment when given the opportunity to do so. That was likely because the representative understood it was obvious the Tribunal would not accede to such a request given (a) it had already refused the agent’s request prior to the hearing and nothing had changed, and (b) the applicant had already had an extended period to comply with the requirements but failed to do so without any clear indication that further attempts at compliance would be more successful.
I acknowledge the Tribunal gave the applicant’s mid-hearing requests for delay even shorter shrift than it had given the earlier request by the agent. That response may have been inelegant, but the Tribunal’s decision to proceed embodied an implicit but effective rejection of any application for adjournment. The question for me is whether that effective rejection was unreasonable in the sense it lacked any evident and intelligible justification. I have already articulated the matters which I found (at least by inference) provided an obvious basis for the Tribunal’s rejection of the pre-hearing application. I have also explained the reasons which I infer explained why the agent did not add her voice to the applicant’s thinly articulated request for delay. I am satisfied those reasons also provided a basis for the Tribunal insisting it would proceed to complete the review without further delay. The fact the Tribunal did not stop to expressly address the applicant’s request was no doubt because it thought it had already made clear the time had come to make a decision.
Mr Bhatia pointed out the Full Court had observed in Singh that the power to adjourn in s 363(1) was to be exercised in service of the Tribunal’s statutory function of conducting a lawful, fair and efficient review. After identifying that obviously correct proposition, Mr Bhatia argued the applicant may have been able to satisfy the English language proficiency requirements through the simple expedient of enrolling in an appropriate course. In those circumstances, Mr Bhatia submitted the Tribunal should have exercised the discretion to adjourn to give the applicant an opportunity to perfect her case.
That submission must be rejected. To begin with, it devolves down to an argument that the Tribunal should have exercised its discretion differently, which is an invitation to the Court to engage in impermissible merits review. Moreover, the argument about the alternative pathway was not put to the Tribunal at the hearing, and it is not clear the applicant understood it was a live option that she would pursue if an adjournment were granted. The Tribunal cannot be faulted for failing to take account of an argument that was not made. The submission in any event misapprehends what was said in Singh at [53] and in Li at [82]. As I have already noted, the plurality in Li said the Tribunal was obliged to give an applicant a reasonable opportunity to present their case. That does not require the Tribunal to provide additional opportunities so the applicant can improve their position or address defects in their case that should have been apparent. Even if the applicant had made clear there were good reasons to believe she could meet the requirements if she just had a short delay, the Tribunal would still have been entitled to proceed as it did given the factors I have already identified.
There is no substance to the claim that the Tribunal acted unreasonably when it proceeded to make a decision.
I turn next to the related submission that the same facts I have already discussed suggest the applicant was denied procedural fairness. That submission must be rejected. The Tribunal’s procedural fairness obligations are set out in the Act. The Tribunal complied with them. It invited the applicant to attend a hearing. The applicant was clearly on notice as to what would be discussed at that event. She took the opportunity to provide information about the outcome of a more recent test. The Tribunal invited the applicant and her representative to say anything they wished. The applicant said her piece and the representative remained mute. There is no suggestion the applicant was in a position at that time to satisfy the requirements: the score she obtained on the most recent test result was insufficient, and she was not enrolled in another course. The Tribunal was not required to go further and provide the applicant with further opportunities to address this critical shortcoming. I acknowledge the hearing was very short, and the Tribunal might have spent more time explaining the reality of the applicant’s situation to her. (If it had, there was at least a chance she might have accepted the decision.) A more fulsome hearing might have been more satisfying, but it would not have been fairer.
The Tribunal discharged its procedural fairness obligations at the hearing. Having heard from the applicant, it was entitled to proceed as it did.
Mr Bhatia also argued the Tribunal misunderstood its powers and obligations with respect to the hearing. He noted the Tribunal said at the outset of the hearing it had “no discretion to go outside the law”. Mr Bhatia said that statement suggested the Tribunal did not appreciate it had the discretion to grant an adjournment; alternatively, he speculated it might have been misunderstood by the applicant as a pre-emptive refusal to consider that possibility.
That submission must also be rejected. The Tribunal’s statement that it had “no discretion to go outside the law” was made in the context of an explanation of the Tribunal’s role which I have already quoted. That explanation is conventional and correct as a matter of law. The Tribunal steps into the shoes of the original decision-maker. It has the same powers and is subject to the same limits as the original decision-maker: see, generally Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 and Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629; [2019] HCA 16. The Tribunal’s remarks at the hearing in this case do not suggest the Tribunal was unaware it had the power to adjourn in s 363(1). It had already decided an application for adjournment in advance of the hearing.
Conclusion
The application for judicial review must be dismissed.
That leaves only the question of costs. Both parties foreshadowed they would request costs if they were successful. I am satisfied costs should follow the event. The minister has plainly expended costs in dealing with these proceedings. Mr Pinder, the minister’s representative, asked for an award in a fixed amount of $6,800. Mr Pinder said that amount reflects the work done on the file, and it is less than the amount indicated in the Court’s scale. I am satisfied that is a reasonable amount in the circumstances having regard to the complexity of the case.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 18 June 2025
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