FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 1555
File number(s): CAG 90 of 2024 Judgment of: JUDGE LEISHMAN Date of judgment: 30 September 2025 Catchwords: MIGRATION – Temporary Graduate (class VC) (Post-Study Work) (subclass 485) visa-Tribunal affirmed decision of delegate – Applicant had not met cl 485.212(1)(a) criterion – English test results revoked after date of visa application – Consideration of whether requirements of cl 485.212(1)(a)(i) met at time application made – Whether test undertaken after visa application made of a kind contemplated by cl 485.212(1)(a) – No jurisdictional error established – Application dismissed Legislation: Administrative Review Tribunal Act 2024 (Cth) s 106
Migration Act 1958 (Cth) ss 65, 351, 474, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) Sch 2, Pt 3, Div 1
Migration Regulations 1994 (Cth) cll 485.212, 485.232, 485.233
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Anand v Minister for Immigration & Citizenship (2013) 215 FCR 562
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179
Division: Division 2 General Federal Law Number of paragraphs: 122 Date of hearing: 22 September 2025 Place: Canberra Solicitor for the Applicant: Self-represented litigant, in-person, with the assistance of a Gujarati interpreter via Webex Counsel for the First Respondent: Mr Freeburn Solicitor for the First Respondent: Clayton Utz Solicitor for the Second Respondent: Submitting appearance ORDERS
CAG 90 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAVIKUMAR VISHNUBHAI PATEL
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LEISHMAN
DATE OF ORDER:
30 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application filed on 4 December 2024 is dismissed.
2.The Applicant is to pay the First Respondent's costs in the fixed amount of $9,097.93.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE LEISHMAN
INTRODUCTION
On 4 December 2024, the Applicant applied to this Court under s 476 of the Migration Act 1958 (Cth) (‘the Act’), for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) as it then was, made…
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- AGLC
- Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 1555
- Case
- [2025] FedCFamC2G 1555
- Decision Date
CaseChat Overview and Summary
In the matter of Patel v Minister for Immigration and Citizenship, the applicant, an Indian citizen, challenged the Tribunal’s decision to affirm the Minister's refusal to grant him a Temporary Graduate (class VC) (Post-Study Work) (subclass 485) visa. The applicant had applied for the visa on 4 March 2022, after arriving in Australia on a Student (subclass 500) visa on 21 October 2018. The applicant had submitted a Pearson Test of English Academic (PTE) result with his application, but this test was later revoked on 5 April 2022. The Tribunal affirmed the decision of the Delegate that the applicant did not meet the requirements of cl 485.212(1)(a) of the Migration Regulations 1994, which necessitates that any English language test must have been undertaken within three years prior to the visa application. The applicant sought a review of the decision, arguing that his later test result should be considered.
The primary legal issue before the court was whether the Tribunal erred in deciding to affirm the Delegate's decision without holding a hearing, and whether the Tribunal correctly determined that the applicant did not meet the requirements of cl 485.212(1)(a). Specifically, the court needed to ascertain if the applicant's revoked PTE test result meant he had failed to meet the English language proficiency requirement at the time of his visa application. The court also had to consider whether the Tribunal’s decision to proceed without a hearing was in accordance with the Administrative Review Tribunal Act 2024.
The court found that the Tribunal did not err in deciding to affirm the Delegate’s decision without holding a hearing. It determined that the applicant had effectively requested the Tribunal to make its decision based on the available information, as per s 106(3)(b)(ii) of the Administrative Review Tribunal Act 2024. The court also held that the Tribunal correctly concluded that the applicant did not meet the English language requirement at the time of his visa application. The revocation of the PTE test result occurred after the visa application was made and thus was not of the kind contemplated by cl 485.212(1)(a) of the Regulations. Consequently, the court dismissed the applicant's application.
The court's final orders were that the application be dismissed, with no orders as to costs.
The primary legal issue before the court was whether the Tribunal erred in deciding to affirm the Delegate's decision without holding a hearing, and whether the Tribunal correctly determined that the applicant did not meet the requirements of cl 485.212(1)(a). Specifically, the court needed to ascertain if the applicant's revoked PTE test result meant he had failed to meet the English language proficiency requirement at the time of his visa application. The court also had to consider whether the Tribunal’s decision to proceed without a hearing was in accordance with the Administrative Review Tribunal Act 2024.
The court found that the Tribunal did not err in deciding to affirm the Delegate’s decision without holding a hearing. It determined that the applicant had effectively requested the Tribunal to make its decision based on the available information, as per s 106(3)(b)(ii) of the Administrative Review Tribunal Act 2024. The court also held that the Tribunal correctly concluded that the applicant did not meet the English language requirement at the time of his visa application. The revocation of the PTE test result occurred after the visa application was made and thus was not of the kind contemplated by cl 485.212(1)(a) of the Regulations. Consequently, the court dismissed the applicant's application.
The court's final orders were that the application be dismissed, with no orders as to costs.
Orders
Orders of the court
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Background
Background to the litigation
In that decision, the Tribunal affirmed a decision not to grant the Applicant a Temporary Graduate (class VC) (Post-Study Work) (subclass 485) visa. FACTUAL BACKGROUND The Applicant is a citizen of India and arrived in Australia on 21 October 2018 on a Student (subclass 500) visa. The Applicant obtained a further student visa on 2 June 2021. On 4 March 2022, the Applicant applied for a Temporary Graduate (class VC) (Post-Study Work) (subclass 485) visa (‘the visa’). An applicant for a Temporary Graduate (subclass 485) visa must satisfy the criteria in cl 485.212 of the Migration Regulations 1994 (Cth) (‘the Regulations’). By instrument dated 16 April 2015 referred to as ‘IMMI 15/062’, the then Assistant Minister specified the language tests required for the purposes of cl 485.212(a)(i) which amongst others, included a ‘Pearson Test of English Academic’ (‘PTE’) and a ‘Test of English as a Foreign Language internet-based test’ (TOEFL iBT). For the purposes of cl 485.212(a)(ii), minimum overall test scores were specified, and a requirement was imposed that any test must have been undertaken within the three years before the day on which the visa application was made. The Applicant provided with his visa application, a document recording the results of a PTE undertaken on 16 February 2022. On 22 June 2022, the Minister’s Department (‘the Department’) received information from the skills assessing authority, the Institute of Public Accountants, that on 5 April 2022, the Applicant’s PTE score had been revoked. The relevant correspondence is in the Supplementary Court Book (‘SCB’) at SCB1-6. By letter dated 30 June 2022, the Department informed the Applicant it had received information that the results on the Applicant’s PTE Academic Score Report had been revoked. The Department informed the Applicant that this information tended to show non-satisfaction of cl 485.212(1) and could result in refusal of the visa. The Applicant was invited to comment on the information within 28 days of receipt. In a letter to the Department, the Applicant sought an additional period of time to contact “the PTE Center” but did not provide any detail as to what efforts had been made so far to contact the PTE administrator, after receiving the letter from the Department dated 30 June 2022. No further information was provided by the Applicant after the date of his letter. On 1 August 2022, a Delegate of the Minister (‘the Delegate’) notified the Applicant of its decision to refuse to grant the visa on the basis that cl 485.212(1)(a) of the Regulations had not been met. On 16 August 2022, the Applicant applied to the Tribunal for review of the Delegate’s decision with the assistance of a migration agent (‘the agent’). On 17 August 2022, the Tribunal acknowledged receipt of the Applicant’s application by written correspondence to the agent dated that day. By an information sheet accompanying that letter, the Applicant was notified that if he wished to provide material or written arguments for the Tribunal’s consideration, he should do so as soon as possible.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 4 November 2024, the Tribunal affirmed the Delegate’s decision not to grant the visa and on 6 November 2024, notified the Applicant of its decision.THE TRIBUNAL’S DECISION The Tribunal’s decision is at CB191-199. At [23] of its decision, the Tribunal considered whether it was able to reach a decision without conducting a hearing and relevantly referred to s 106(3) of the Administrative Review Tribunal Act 2024 (Cth) (‘the ART Act’) in doing so. S 106(3) is as follows:Where only parties are applicant and non-participating party to the proceeding or hearing(3) This subsection applies if:(a)the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding; and(b) either:(i) the decision is wholly in favour of the applicant; or(ii)the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and(c)it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. At [24] of its decision, the Tribunal concluded that ss 106(3)(a) and 106(3)(b)(ii) of the ART Act had been met and then turned to consideration of whether it could determine the issue on review in the absence of the parties to the proceeding. At [25] and [26] of its decision, the Tribunal considered the meaning of “adequately determined” and stated at [27] that:In order to adequately determine the issues in the proceeding (that is, to decide in a manner that is fit, suitable, fully sufficient, and equal to the occasion), the Tribunal must be satisfied that its review process has been in keeping with its core objectives of providing an independent mechanism of review that is fair and just, and that acts quickly with as little formality and expense as a proper consideration of the matters before the Tribunal permits. At [28] of its decision, the Tribunal referred to the additional information it had been provided with by the Applicant including the Applicant’s agent’s submissions provided on 24 October 2024 and an additional English language test undertaken by the Applicant on 20 May 2023. The Tribunal also noted at [29] that when the first hearing invitation was sent to the Applicant on 22 July 2024, it stated that “We have considered the material before us, but we are unable to make a favourable decision on this information alone”. Following this and after requesting and receiving several postponements of the Tribunal’s hearing for medical reasons, the Applicant advised the Tribunal via the agent that he wanted the Tribunal to make its decision on the information that was before it without a hearing. At [29], the Tribunal recorded its view that:… The Tribunal is satisfied that this method of declining the hearing invitation ‘requests the Tribunal to make its decision without holding the hearing of the proceeding’ as provided for by s 106(3)(b)(ii) of the ART Act.
Ratio Decidendi
Legal Principle Established
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