Patel v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1555
•30 September 2025
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
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1361
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 on 4 November 2024.
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.
On 22 July 2024, the Tribunal invited the Applicant to attend a hearing via Microsoft Teams on 14 August 2024.
On 23 July 2024, the Tribunal invited the Applicant to attend a test call on 8 August 2024, to ensure the scheduled hearing ran smoothly.
On 24 July 2024, the Tribunal advised the Applicant that it needed to reschedule the hearing of his review application to 20 August 2024, at 10.00 am by Microsoft Teams. The Applicant was notified that he should provide any additional material in support of his case by 13 August 2024.
On 12 August 2024, the agent notified the Tribunal the Applicant had been in an accident, and he may not be able to attend the hearing on 14 August 2024.
On 13 August 2024, the agent notified the Tribunal by email that the Applicant was unable to attend the hearing due to a medical condition and requested the hearing be rescheduled to a later date. A medical certificate stating the Applicant was unfit for work from 12 August 2024 to 18 August 2024 was included with the email.
On 13 August 2024, the Tribunal notified the Applicant that the Tribunal intended to keep the hearing date of 20 August 2024 and requested that the agent update the Tribunal as soon possible with advice of whether the Applicant would be able to attend the video-conference hearing on 20 August 2024.
On 15 August 2024, the agent notified the Tribunal by email that the Applicant was unable to attend the hearing on 20 August 2024 and requested that it be rescheduled to another date. A medical certificate stating the Applicant was not fit to attend his Court date was included with the email and included a request to postpone it until after the end of August.
On 16 August 2024, the Tribunal notified the Applicant that the hearing had been rescheduled to 18 September 2024, at 10.00 am by Microsoft Teams. The Tribunal requested that the Applicant advise the Tribunal as soon as possible, with medical evidence, if he was unable to attend the hearing.
On 30 August 2024, the Tribunal invited the Applicant to attend a test call on 11 September 2024, to ensure the scheduled hearing ran smoothly.
On 16 September 2024, the agent notified the Tribunal by email that the Applicant was unable to attend the hearing on 18 September 2024 and included a medical certificate stating the Applicant was not fit to attend his Court date on 18 September 2024. The email also included a request that the hearing be postponed for another month.
On 17 September 2024, The Tribunal sent an email to the Applicant advising that the Presiding Member would agree to reschedule the hearing to a date in October 2024 to be advised shortly, but did not anticipate any further rescheduling without a more detailed medical certificate indicating the Applicant is unable to participate in a video-conference hearing of approximately 1 hour, and stating when he will be able to do so.
The Applicant was advised that in the alternative, the Applicant could waive his right to a hearing, and the Tribunal could proceed to make its decision on the available evidence. In doing so, the Presiding Member notified the Applicant that the criterion in dispute (cl 485.212 of Sch 2 to the Regulations) requires that the Applicant had undertaken a specified English test in the three years before he made his (subclass 485) visa application or, was exempt from doing so.
The Presiding Member noted in the email that it did not appear the Applicant was exempt, nor that he had undertaken a specified English test in the three years prior to 4 March 2022, and that an English test undertaken after that date would not satisfy cl 485.212.
The email requested that the Applicant advise the Tribunal by 20 September 2024 whether he wished to waive his right to a hearing.
On 17 September 2024, the Tribunal notified the Applicant that the hearing had been rescheduled to 22 October 2024 at 10.00 am via Microsoft Teams. The Tribunal advised the Applicant that no further rescheduling would be undertaken without a detailed medical certificate stating why the Applicant is unable to attend a video hearing with an anticipated duration of 30 minutes to 1 hour, and when the Applicant would be able to do so.
On 21 October 2024, the day prior to the scheduled hearing date, the Applicant’s agent sent an email to the Tribunal which is in the Court Book (‘CB’) at CB168. The email read:
After careful consideration, [the Applicant] has decided to waive his right to a hearing and requests that the Tribunal proceed to make a decision based on the available evidence. As such, we kindly request that tomorrow’s hearing not be scheduled.
The agent sent further emails to the Tribunal on 21 and 22 October 2024, stating that the Applicant wished for the review to be determined on the papers (CB170-173). An email from the Applicant dated 22 October 2024 was included with the agent’s email of the same date (CB175). Relevantly, this stated:
… Given my inability to participate in the proceedings and my current mental and physical state, I kindly request that the Tribunal proceed with making a decision based on the available information and the submission provided by my Migration Agent, Mr Krunal Nayak Registration number 2217941, who is acting on my behalf.
In an email dated 24 October 2024, the agent provided to the Tribunal a set of written submissions, and a Test Taker Score Report dated 20 May 2023 (CB178). The Report contained the Applicant’s results in the TOEFL iBT (CB183-184).
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.
The Tribunal then went on to record at [30] of its decision that the Applicant had been advised that a favourable outcome was not likely based on the information presently before the Tribunal, and that he had been given an opportunity to provide further evidence in person or in writing, and that through his agent, he had done so on 24 October 2024.
The Tribunal took this to mean that the Applicant had presented all the information he wanted to present and recorded that his case did not involve any novel questions of fact or law. As such, it concluded that it had sufficient information before it to assess the Applicant’s claims.
At [31] of its decision the Tribunal concluded that it had the necessary material before it to properly consider the application before it and that on balance, the issues to be determined could be adequately considered in the absence of the parties.
The Tribunal identified at [33] of its decision (CB197) that the issue on review was whether the Applicant met the requirements of cl 485.212 of Sch 2 of the Regulations.
At [34] of its decision the Tribunal noted that cl 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232 or cl 485.233 which both refer to a person making a second (subclass 485) application. The Tribunal satisfied itself that the application under review was the Applicant’s first (subclass 485) visa application.
Clause 485.212(1) of the Regulations is as follows:
485.212
(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 the instrument 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.
…
The Tribunal identified at [36] of its decision that the relevant instrument specifying language tests, scores, relevant periods and passports in force at the time of the application was IMMI 15/062.
The Tribunal then went on to identify at [37] of its decision that:
IMMI 15/062 states that a PTE Academic English test is a specified language test for the purposes of cl.485.212(1)(a)(i) and that an applicant must obtain a minimum overall score of 50, with a minimum score of 36 points for each of the components of listening, reading, writing and speaking in such a test. Item 4 of IMMI 15/062 states that such a test must have been undertaken within the 3 years before the day on which the visa application was made.
The Tribunal recorded at [38] that the Applicant had provided a PTE Academic English test report (‘the test report’) dated 16 February 2022 with his review application. The test report showed that the test had been undertaken on 16 February 2022 and that the Applicant had obtained scores of 90 in each of the four test components of listening, reading, writing, and speaking. The Tribunal accepted that the scores exceeded those required by IMMI 15/062.
At [39] of its decision, the Tribunal noted that the Department’s records indicated that they had been advised on 5 April 2022, that the PTE Academic English test administrators had nullified the Applicant’s test results of 16 February 2022. The Tribunal took into account that the Department wrote to the Applicant advising him of this information and invited his response.
The Tribunal noted that the Applicant did not provide a response to the Department within the required timeframe and at the date of the Tribunal hearing had not provided any indication that he had received an explanation from the test administrators.
The Tribunal recorded at [39] the Applicant’s explanation given for not providing any information as to why the test was nullified as follows:
… the applicant stated that he tried to contact the test administrators at the time that he was notified by the Department that his results had been nullified but was unable to do so within the timeframe provided by the Department due to communications difficulties he attributed to the COVID19 global pandemic.
The Tribunal then went on to record that the Applicant had not provided any evidence of his contact with the test administrators since the end of the pandemic and there was nothing to indicate that the information given by test administrators to the Department was incorrect, or that the test administrators had reinstated the Applicant’s test results.
The Tribunal stated at [40] of its decision it’s view that the Delegate’s decision clearly identified the reasons for the visa refusal, and the information about the nullification of the Applicant’s PTE Academic Test results.
The Tribunal considered at [41] whether the nullification of the PTE Academic Test result after the Applicant had lodged his visa application, meant he had met the requirements of cl 485.212(1)(a)(i), noting that at the time he lodged the visa application, he had undertaken a specified English test in the previous three years and obtained the required scores.
In determining that question, the Tribunal considered the ordinary meaning of the term ‘nullify’ at [42] of its decision and referred to the Macquarie Dictionary definition which was:
(1)To make ineffective, futile, or of no consequence; and
(2)To render or declare legally void or inoperative.
The Tribunal therefore concluded that the ordinary meaning of ‘nullified’ indicates that the Applicant's test results are taken to be legally void or inoperative from the beginning, regardless of when a declaration to that effect was made. As such, it found that the Applicant had not obtained the required scores in that test in the three years before he lodged his visa application on 4 March 2022.
At [43] of its decision, the Tribunal considered the Applicant’s test result for the later test undertaken on 20 May 2023. At [43] of its decision, the Tribunal recorded that it had no power to waive the requirements of cl 484.212(1)(a) and could not take into account a test that was not undertaken in the three years before the visa application was made.
The Tribunal ultimately concluded at [45] that the Applicant did not meet the requirements of cl 485.212 of Sch 2 to the Regulations and therefore did not satisfy the criteria for the grant of a Temporary Graduate (subclass 485) visa.
The Tribunal recorded after reaching its conclusion at [46] of its decision that the Applicant maintained his original PTE Academic English Test results were genuine and that he had reached the required scores in the later test undertaken. It also recorded that the Applicant continued to suffer health complications from his accident and that it was open to him to seek ministerial intervention pursuant to s 351 of the Act.
CURRENT PROCEEDINGS
On 4 December 2024, the Applicant applied to this Court pursuant to s 476 of the Act for judicial review of the decision of the Tribunal (‘the application’). The Applicant also filed an affidavit annexing the Tribunal’s decision.
On 18 July 2025, procedural orders were made which included an order permitting the Applicant to file any submissions, amended application, and any additional evidence upon which he sought to rely 28 days prior to the hearing. The Court also noted that the Applicant intended to seek legal advice.
The Applicant did not file any further material.
The matter was listed for a final hearing on 22 September 2025.
MATERIAL RELIED UPON
At the hearing, the material listed below was before the Court.
The Applicant relied upon the following material:
(a)The Court Book which was tendered and marked as Exhibit C-1;
(b)The Supplementary Court Book which was tendered and marked as Exhibit C-2;
(c)The application for judicial review filed on 4 December 2024; and
(d)The affidavit of Ravikumar Vishnubhai Patel filed on 4 December 2024.
The First Respondent relied upon the following material:
(a)The Court Book which was tendered and marked as Exhibit C-1;
(b)The Supplementary Court Book which was tendered and marked as Exhibit C-2;
(c)List of Authorities filed on 11 September 2025;
(d)Outline of Submissions filed on 8 September 2025; and
(e)Response filed on 20 January 2025.
A Gujarati interpreter was present at the hearing via Webex to assist the Applicant.
The Applicant was given the opportunity to make oral submissions in support of his application and in reply to the submissions made by the First Respondent.
I have had regard to the material relied upon by both parties in determining this matter and the further oral submissions made on behalf of each party at the hearing.
REQUIREMENT FOR JURISDICTIONAL ERROR
The Court may set aside the Tribunal’s decision upon judicial review if it is affected by jurisdictional error: see Migration Act 1958 (Cth) ss 474 and 476; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The High Court explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [2] - [3] as error on the part of a statutory decision-maker in making a decision.
This can include misunderstanding the applicable law, asking the wrong question, exceeding the bounds of reasonableness, identifying a wrong issue, ignoring relevant material, relying on irrelevant material or in some cases, making an erroneous finding or reaching a mistaken conclusion, or failing to observe some applicable requirement of procedural fairness.
The Court is not permitted to conduct a merits review of the Tribunal decision when reviewing it: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21.
GROUNDS OF REVIEW
The Applicant’s grounds of review are set out in the application filed on 4 December 2024:
Ground One
The Administrative Appeals Tribunal was erroneous and not supported by the evidence presented in our case.
Consideration
This Ground is a bare, unparticularised assertion that the Tribunal’s decision was erroneous, and not supported by the evidence before it.
In both his application and oral submissions before this Court, the Applicant did not identify which components of the decision he sought to challenge and which aspects of it were without evidential foundation. In particular, the Applicant did not refer to any evidence that was before the Tribunal that demonstrates he met the criterion in cl 485.212 and which the Tribunal failed to take into account.
In his oral submissions the Applicant conceded he had no evidence that he had contacted the PTE administrators about his test results and acknowledged he had not provided any such evidence to the Tribunal. He submitted that he relied upon the agent.
This ground appears to be nothing more than an expression of the Applicant’s disagreement with the Tribunal’s decision. As such, no jurisdictional error is made out in respect of this ground and accordingly, it must fail.
Ground Two
I have reviewed the AAT’s decision and the reason provided for the decision, and I have identified several errors.
Consideration
To the extent to which the Applicant seeks to challenge the merits of the Tribunal’s decision, it is impermissible for this Court to engage in a merits review of the Tribunal’s decision: see EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409, 433; Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36 (per Brennan J).
In the event the Applicant seeks to challenge the Tribunal making a decision without holding a hearing, it is without foundation.
S 106(1) and (3) of the ART Act empowers the Tribunal to make decisions “without holding a hearing” in conditions where relevantly:
(a)The Applicant requests the Tribunal to make its decision without holding the hearing of the proceeding: s 106(3)(b)(ii); and
(b)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: s 106(3)(c).
There can be no dispute that, the correspondence sent to the Tribunal by the Applicant’s agent dated 21 and 22 October 2024, was a request of the kind contemplated by s 106(3)(b)(i) of the ART Act. As is recorded at [29] to [31] of its reasons, the Tribunal formed the state of satisfaction required by s 106(3)(c) of the ART Act that the matters in issue could be determined in the Applicant’s absence.
In doing so, it accounted for the fact the Applicant had been notified of the adverse information concerning the PTE and its impact on his prospects of succeeding in the review; and that the Applicant had placed written material before the Tribunal from himself and his agent to support his application. As such, the Tribunal was plainly entitled to conduct the review in the Applicant’s absence and there was no error in it proceeding to do so.
It was submitted on behalf of the Minister that the Tribunal otherwise complied with its procedural fairness obligations.
It is apparent from the Tribunal’s decision that it properly informed the Applicant of all potentially adverse information that could be considered a reason for affirming the Delegate’s decision under review, in particular the PTE results and its potential impact on the decision.
The Tribunal invited the Applicant to provide comment and to provide any additional information in support of the Application. No further information about the PTE results was provided.
As such, I am satisfied the Tribunal complied with its procedural fairness obligations.
In terms of whether the Applicant contends there was jurisdictional error arising from the Tribunal’s application of cl 485.212 of the Regulations, it was submitted on behalf of the Minister that such a claim is without foundation.
Clause 485.212(1)(a)(ii) of the Regulations requires that the Applicant achieve the required score on their language test within the period specified by the Minister in the instrument. Paragraph 4 of the Instrument (as in force at that time) specified that, for the purposes of cl 485.212(a)(ii), a TOEFL iBT must have been undertaken within three years before the day on which the application was made.
It was mandatory for the Applicant to provide a satisfactory test result undertaken within the three years before the date of the application, which was 4 March 2022. As such, it was submitted on behalf of the Minister that the Tribunal properly proceeded on the basis the first test was voided which had the effect of it having not occurred at all.
In Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1361, Manousaridis J observed at [22]:
… The expression “day on which the application was made” in the Instrument identifies a day; and it identifies the day by reference to the day “on which the application was made”. The Instrument identifies a day to enable the Minister to specify that which cl 485.212(a) of Schedule 2 permits the Minister to specify, namely, the period within which an applicant must undertake the language test and achieve a minimum specified score; and the Instrument specifies the period by fixing a three year period ending before “the day on which the application was made”. The expression “the application was accompanied by evidence” in cl 485.212(a) of Schedule 2, on the other hand, specifies something different; it specifies a requirement that must be fulfilled when an application for a visa is made. That requirement is the application's being accompanied by evidence that the applicant has undertaken the specified language test and has achieved the specified minimum score, and the applicant has done these things within the period the Minister may specify by instrument made for the purpose of cl 485.212(a) of Schedule 2.
It was submitted on behalf of the Minister that the phrase “day on which the application was made” refers to the date the visa application was lodged, not a later date when additional evidence is submitted. As such, the provision of the Applicant's TOEFL iBT results after the date of his application for a visa was made, cannot meet the requirement that the application be accompanied by the necessary evidence.
I accept this submission and accordingly, the provision of the subsequent test results achieved after the date that the Applicant’s visa application was made cannot satisfy the criteria under cl 485.212(1)(a).
The Minister also provided submissions as to whether the Tribunal was entitled to, as it did in this instance, consider evidence provided by other sources after the application date.
It was submitted that as cl 485.212(1) requires that an application be “accompanied by evidence” of the matters listed in, relevantly, cl 485.212(a)(i) and (ii). The meaning of the term “accompanied by” is accordingly relevant.
It was submitted on behalf of the Minister that there are two possible interpretations of this term. First, the requirement that an application be “accompanied by” the evidence may be read as merely conveying the point in time at which the tasks listed at cl 485.212(1)(a) must be shown to have been completed. In other words, it is a requirement about what the evidence must disclose, not the time at which the evidence must be provided. On this interpretation, there would be no impediment to the Applicant providing, and the Tribunal relying upon, material given after the application date (but before the decision).
Second, the term “accompanied by” may be read as not only identifying what the evidence must disclose, but also as limiting the time at which the evidence may be provided by an applicant. In assessing whether there is “evidence” that, by the time of the application, the Applicant has performed the tasks listed at cl 485.212(1)(a), the Tribunal cannot, on this construction, consider material provided by the Applicant after the application.
In Anand v Minister for Immigration & Citizenship (2013) 215 FCR 562 (‘Anand’), the Court considered similar wording to that contained in cl 485.212(1), being cl 487.21 and cl 487.216 of Sch 2 to the Regulations in force at the time of the decision. That provision required that applications for the relevant visa be “accompanied by evidence” that the applicant had “applied for an Australian Federal Police check during the 12 months immediately before the day when the application was made”.
In construing the words “accompanied by”, Katzmann J adopted a construction that closely aligned to the narrower construction identified above. According to his Honour at [27], the evidence contemplated by cl 487.21 “should be submitted with or at the same time as the application”.
While his Honour observed that the Tribunal was not necessarily precluded from considering evidence submitted after the filing of an application, there needed to be “some temporal connection” between the two. Whether there was sufficient temporal connection was a matter for the Tribunal to decide.
The reasoning in Anand supports a narrow construction of cl 485.212(1) that limits the time at which evidence may be provided by the Applicant. However, it was submitted on behalf of the Minister that it does not support a construction that prohibits the Tribunal from considering evidence provided by other sources in determining whether the relevant criteria is met.
It was submitted on behalf of the Minister that the overarching purpose of cl 485.212(1)(a) is to ensure that holders of the visa sought by the Applicant have a partial level of competency in the English language. It was submitted for the Minister that such purpose would not be served if the Minister was restricted to evidence of competency produced only by the Applicant himself.
I agree that such a construction would limit the integrity of the visa application process if the Minister did not have the capacity to independently interrogate the Applicant’s material, including by reference to evidence from third party sources and evidence produced after an application is made.
In this case, I consider the Tribunal’s conclusions had evidentiary basis and there was logical connection between the two.
When viewed in isolation, the PTE record was material that could have established that, at the time of his application, the Applicant had achieved the requisite PTE results. However, the information obtained by the Department was material capable of indicating the contrary. As the Tribunal identified, to ‘revoke’ or ‘nullify’ a result connotes that it is “taken to be legally void or inoperative from the beginning, regardless of when a declaration to that effect was made” (CB199).
Further, because the subsequent test had been undertaken after the visa application had been made, it was clear that evidence of that test result was not the kind contemplated by cl 485.212(1)(a). Ultimately, there was evidentiary foundation to the Tribunal’s finding that the required ‘evidence’ did not exist at the time the application was made.
It was raised in submissions by the Minister that the Tribunal’s decision at [39] records the Department being advised on 5 April 2022 of the Applicant’s PTE results of 16 February 2022 having been revoked. The emails contained within SCB1-6 show that the Department was in fact first notified on 22 June 2022 of the test results having been revoked. The information records that the results themselves were revoked by the administrator on 5 April 2022.
The Department had properly notified the Applicant on 30 June 2022 after receiving the information of the potentially adverse outcome of his visa application.
I consider the error in the Tribunal’s decision as to the date the Department received notification is of no consequence to the Tribunal’s substantive determination that the Applicant had not met the criterion in cl 485.212 at the time of the visa application.
As such, no jurisdictional error is made out in respect of this ground and accordingly, it must fail.
Ground Three
The AAT did not adequately consider the hardship that the refusal of our Visa Application would cause us and our family member and the financial and emotional impact on our lives.
Consideration
The Applicant claims that the Tribunal “did not adequately consider the hardship” that refusal of the visa would have on the Applicant and his family.
The decision to be made by the Minister (and Tribunal on review) in the performance of the duty imposed by s 65 of the Act is ‘binary’. The Minister is to do one or other of two mutually exclusive legally operative acts:
(1)To grant the visa under s 65(1)(a); or
(2)Refuse to grant the visa under s 65(1)(b), depending on the existence of one or other of two mutually exclusive states of affairs. See Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at [34].
In the Applicant’s case, the Tribunal was not satisfied that a primary criterion for the visa had been met. Having formed that state of satisfaction, the Tribunal had no power to waive the criterion and thus, no power to grant the visa. Further, there was no criterion directed at hardship faced by an applicant. It was plainly not a matter that the Tribunal was required to (or even able to) take into account in deciding the substance of the review.
As such, no jurisdictional error is made out in respect of this ground and accordingly, it must fail.
CONCLUSION
For the reasons given above, I find that no jurisdictional error is established and the application for judicial review is, accordingly, dismissed.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs.
The First Respondent sought costs in the fixed amount of $9,097.93 being the applicable scale amount at item 3 of Div 1 of Pt 3 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
The Applicant said he would not be able to pay costs but otherwise did not object to the amount sought.
I consider the amount sought by the First Respondent is reasonable and will make an order for the amount sought accordingly.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Leishman. Dated: 30 September 2025
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