Giri v Minister for Immigration and Citizenship [2025] FedCFamC2G 1592

1. On 20 June 2022, the applicant lodged an application, under s 476 of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 18 May 2022. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa under s 65 of the Act.
2. For the reasons that follow, the application is dismissed.

1. Clause 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) provided at the time of the Tribunal's decision:

(1) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence that the applicant has a level of English language proficiency that meets the requirements specified in an instrument under paragraph (3)(a).

Note: For arrangements for the use of a computer program, see section 495A of the Act.

(2) Subclause (1) does not apply to an applicant within a class of applicants specified in an instrument under paragraph (3)(b).

(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.

1. The applicable legislative instrument at the time of the Tribunal's decision was Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018 ('IMMI 18/015'). Clause 6 of IMMI 18/015 relevantly provided:

(1) For the purpose of subclause 500.213(1) of Schedule 2 to the Regulations, the following requirements are specified:

(a) the applicant must undertake one of the English language tests specified in Column 1 of Schedule 1

(b) the applicant must achieve the English language test score specified for that English language test in Column 3 of Schedule 1; and

(c) the applicant must have completed the test within the following period:

(i) if evidence of the test is provided at the time the applicant makes an application for a Subclass 500 (Student) visa - 2 years immediately before the date of the visa application; or

(ii) if evidence of the test is not provided at the time the visa application is made - 2 years immediately before a decision to grant or refuse the visa application is made.

1. Section 348(1) of the Act provided at the time of the Tribunal's decision:

348 Tribunal to review Part 5‑reviewable decisions

(1) Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5‑reviewable decision, the Tribunal must review the decision.

1. On 8 April 2021, the applicant, a citizen of Nepal, applied for a subclass 500 student visa.
2. On 20 July 2021, the Department of Home Affairs (Department) sent a letter to the applicant with the subject matter "Request for more information for a Student (subclass 500) visa application". The letter stated in part:

You are required to provide evidence of your English language proficiency to achieve the relevant English language test score.

1. On 24 August 2021, in circumstances where the applicant did not respond to the letter dated 20 July 2021, the Department sent a follow-up letter to the applicant. The letter stated in part:

You are required to provide evidence of your English language proficiency to achieve the relevant English language test score.

You were sent a request for information on 20 July 2021 which you have not responded to. Please note this is your second request.

1. On 19 October 2021, a delegate of the first respondent refused to grant the applicant the visa on the basis that:

(a) By letters dated 20 July 2021 and 24 August 2021, pursuant to cl 500.213(1) of Schedule 2, the Minister required the applicant to "give to the Minister evidence that the applicant has a level of English language proficiency that meets the requirements specified in an instrument under paragraph (3)(a)".

(b) The applicant did not provide the requested evidence to the Department.

(c) The applicant did not fall within a class of applicants referred to in cl 500.213(2).

(d) It followed that the applicant did not satisfy cl 500.213 of Schedule 2.

1. On 5 November 2021, the applicant applied to the Tribunal for review of the delegate's decision.
2. On 25 November 2021, the Tribunal sent the applicant a letter with the subject matter "Request for Information". The letter stated in part:

You are requested to provide the following information:

In order to assist the Tribunal to process the above application for review, the following information is requested:

• Evidence that the primary applicant meets the English language requirements.

1. On 22 December 2021, the applicant sent an email in reply which stated:

I am writing in regards to the documents requested and please let me know if the document provided is sufficient or not otherwise I will book one more English exam to fulfill the score requirements.

The email attached the results of an English language test undertaken by the applicant on 20 December 2021 (Test Result).

1. On 2 May 2022, the Tribunal invited the applicant to attend a hearing by telephone on 18 May 2022. The letter added:

We have considered the material before us but we are unable to make a favourable decision on this information alone.

...

Please provide all documents you intend to rely on to support your case by 11 May 2022 ... In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:

1. A copy of your current Confirmation of Enrolment ...

2. ...

3. Evidence you meet the English language proficiency requirements as prescribed by the relevant legislative instrument, currently IMMI 18/015, which is attached.

1. On 18 May 2022, the applicant appeared at the hearing before the Tribunal by telephone.
2. On 18 May 2022, following the hearing and on the same day, the Tribunal made a decision affirming the delegate's decision not to grant the applicant a student visa.

To meet cl 500.213, the applicant must (if required by the Minister) give evidence that they have a level of English language proficiency that meets the requirements specified in an instrument: cl 500.213(1).

1. The Tribunal at [29] noted that the applicant "received numerous requests from the Department ... to provide information that addresses cl 500.213 and IMMI 18/015".
2. The Tribunal at [16] recorded that on 25 February 2022 (the parties agreed at the hearing in this Court on 22 September 2025 that the Tribunal meant to write "2 May 2022" rather than "25 February 2022") the Tribunal wrote to the applicant and requested he provide evidence he met the English language proficiency requirements prescribed by the relevant legislative instrument. The Tribunal at [20] described this letter as a "request from ... the Tribunal to provide information that addresses cl 500.213".
3. The Tribunal at [17] found that the applicant did not comply with this request. In relation to the Test Result provided by the applicant on 22 December 2021, for reasons explained by the Tribunal, the applicant did not "achieve the English language test score specified for that English language test in Column 3 of Schedule 1" of IMMI 18/015: see cl 6(1)(b) of IMMI 18/015.
4. The Tribunal at [21] concluded that "the applicant did not provide any documents that adequately addressed English language requirements as set out in IMMI 18/015 prior to the hearing, during the hearing or after the hearing".
5. It followed that, as found by the Tribunal at [23] and [24], the applicant did not meet cl 500.213 and hence "the criteria for the grant of a subclass 500 (student) visa are not met".

Judicial review application and steps up to hearing on 22 September 2025

1. On 20 June 2022, the applicant lodged an application in this Court seeking judicial review of the Tribunal's decision.
2. On 19 September 2022, a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing a written submission, any amended application with proper particulars, and any additional evidence on which the applicant sought to rely.
3. Following a period of inactivity, on 4 August 2025 the parties were notified by the registry of the Court that the matter was listed for hearing on 22 September 2025.
4. On 2 September 2025, the applicant's representative filed an affidavit of the applicant which annexed a transcript of the hearing before the Tribunal on 18 May 2022. The applicant stated some other matters in the affidavit which I address in paragraph 31 below.
5. On 5 September 2025, an amended application was accepted for filing (Amended Application) which contained two grounds. At the hearing in this Court on 22 September 2025, the applicant's counsel abandoned ground 2. Ground 1 was (as written):
   1. The Second Respondent (Tribunal) made a jurisdictional error by misinterpreting and / or misapplying cl 500.213 in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).

Particulars:

1. The Tribunal reproduced at paragraph 9 of its decision cl 500.213, including cl 500.2 13(1), which refers to the Applicant, "[i]f required to do so by the Minister" providing evidence that he has a "level of English language proficiency which meets the requirements specified" in an instrument under cl 500.213.
2. The Tribunal at paragraph 11 of its decision described the effect of cl 500.213(1) as being that the Applicant "must satisfy the Minister that they have a level of English language proficiency that meets the requirements specified in the instrument".
3. The Tribunal at paragraph 16 of its decision referred to the fact that it wrote to the Applicant on 21 November 2021 requesting that he provide "[e]vidence you meet the English language proficiency requirements as prescribed by the relevant legislative instrument, currently IMMI 18/015, which is attached
4. The Tribunal found at paragraphs 21-23 of its decision that, as the Applicant had not provided evidence that he satisfied IMMI 18/015, he did not satisfy cl 500.213(1) and it had to affirm the refusal of the visa.
5. The Tribunal thereby misinterpreted and I or misapplied cl 500.213(1) as the expression "[i]f required to do so by the Minister" required the Tribunal, standing in the shoes of the Delegate, to exercise a discretion as to whether the Applicant in his particular circumstances should be made subject to the requirements specified in IMMI 18/015.

1. On 5 September 2025, the applicant filed a written submission (AS).
2. On 15 September 2025, the first respondent filed a written submission.

1. At the hearing in this Court on 22 September 2025, Oliver Jones of counsel appeared for the applicant, and Lisa Liu from Hunt & Hunt Lawyers appeared for the first respondent.
2. Ms Liu tendered:

(a) a Court Book (CB) filed by the first respondent in September 2022 which contained the Tribunal's decision and documents before the Tribunal; and

(b) a supplementary Court Book filed in September 2025 which contained additional documents.

1. During closing submissions, at the request of Mr Jones, I permitted Mr Jones to tender the transcript of the hearing before the Tribunal by reading the affidavit of the applicant filed on 2 September 2025 which annexed the transcript. Mr Jones did not draw my attention to paragraphs 4 to 7 of the affidavit in which the applicant makes assertions and allegations, which do not comply with the rules of evidence in the Evidence Act 1995 (Cth), concerning wrongful conduct of an agent who advised or assisted him when his matter was before the Department or Tribunal. In circumstances where:

(a) Mr Jones did not draw my attention to these paragraphs of the affidavit;

(b) Mr Jones made no written or oral submission concerning these paragraphs of the affidavit; and

(c) the assertions and allegations in the paragraphs are not relevant to ground 1 in the Amended Application,

I assume Mr Jones did not intend to read paragraphs 4 to 7 and advance a ground of review not pleaded or the subject of written or oral submissions.

1. Mr Jones and Ms Liu made oral submissions which supplemented their written submissions. The submissions are addressed below.

1. Clause 500.213 only imposed an obligation on an applicant to "give to the Minister" the evidence specified in cl 500.213(1):

(a) "if required to do so by the Minister", as stated in the opening eight words of cl 500.213(1) (Opening Clause); and

(b) if the applicant was not "within a class of applicants specified in" IMMI 18/015, as stated in cl 500.213(2).

(a) On a review by the Tribunal under s 348 of the Act, cl 500.213 only imposed an obligation on an applicant to give to the Tribunal the evidence specified in cl 500.213(1) if required to do so by the Tribunal, rather than "by the Minister". (Statutory Construction Proposition)

(b) The Tribunal did not require the applicant to provide the evidence to the Tribunal (Factual Proposition), and therefore it was not open to the Tribunal to find that the applicant did not satisfy cl 500.213.

1. In relation to the Statutory Construction Proposition, Mr Jones stated at AS [15]:

... The Minister, and the Tribunal on merits review, must ascertain whether it is appropriate in the circumstances of the Applicant's individual case that he should be subject to the language standards of the Instrument or whether, by virtue of those circumstances, it is appropriate to proceed without such testing.

1. Clause 500.213 was introduced into the Regulations by the Migration Legislation Amendment (2016 Measures No 1) Regulation 2016 (Cth) (2016 Amendment Regulation). Mr Jones' written submission relied on some sentences in the Explanatory Statement to the 2016 Amendment Regulation in support of the Statutory Construction Proposition.
2. The first respondent in its written submission appeared to agree with the Statutory Construction Proposition.
3. However, an alternative construction of the statutory provisions is that the Tribunal, in carrying out a review under s 348 of the Act and in considering the criterion in cl 500.213, was entitled (or perhaps required) to accept the historical fact that the applicant was "required ... by the Minister" to give to the Minister the specified evidence - see letters dated 20 July 2021 (CB 69) and 24 August 2021 (CB 76).
4. In Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 (Shi) at [25] Kirby J stated:

Focusing on the legislation: To resolve the question of whether the Tribunal has exceeded or mistaken its jurisdiction and powers a court must give close attention to the enabling legislation. It is undesirable to attempt universal or unqualified propositions. Here, the issue is how to define the jurisdiction and powers of the Tribunal in conducting a review of a decision of the Authority, having regard both to the general provisions of the AAT Act, affording the power of review, and to the more specific provisions of the Migration Act, defining the characteristics of the decision that is subject to review. Only when all of the relevant features of the two inter-related statutes are understood can a correct decision be arrived at as to the ambit of the review in question and the manner in which it should be conducted.

1. To similar effect, Hayne and Heydon JJ stated at [92]-[93]:

92. As this Court has so often emphasised in recent years, questions presented by the application of legislation can be answered only by first giving close attention to the relevant provisions ...

93. In this case, attention must be directed to provisions of both the AAT Act and the Migration Act. The task of the Tribunal in reviewing the cancellation decision was to be identified by considering the intersecting operation of ss 25 and 43 of the AAT Act, and ss 303 and 306 of the Migration Act.

1. The decision the subject of the Tribunal's review in Shi involved different statutory provisions to the decision the subject of the Tribunal's review in the present matter. However, as in Shi at [25], "to resolve the question of whether the Tribunal has exceeded or mistaken its jurisdiction and powers a court must give close attention to the enabling legislation". Neither party, in their written or oral submissions, gave close attention to the applicable statutory provisions. While my preliminary view is that the Statutory Construction Proposition is correct:

(a) in the absence of submissions from the parties which gave close attention to the applicable statutory provisions; and

(b) in circumstances where this proceeding can be resolved on the basis explained in paragraphs 42 to 50 below,

it is not necessary to decide whether the Statutory Construction Proposition is correct.

1. In relation to the Factual Proposition, Mr Jones asserted that the Tribunal did not, in relation to cl 500.213, request or require the applicant to provide the specified evidence to the Tribunal.
2. However, first, as stated by the Tribunal at [8]:

To meet cl 500.213, the applicant must (if required by the Minister) give evidence that they have a level of English language proficiency that meets the requirements specified in an instrument.

1. Thus, the Tribunal clearly understood that the applicant was only required to provide the evidence specified in cl 500.213(1) if required by the decision-maker.
2. Second, on 25 November 2021 the Tribunal sent the applicant the letter referred to in paragraph 11 above. Mr Jones did not refer to this letter in his written submission. At the hearing on 22 September 2025, I asked Mr Jones why this letter did not comprise a request or requirement by the Tribunal within the meaning of the Opening Clause. Mr Jones replied that, because the letter did not expressly state that the Tribunal member made the request pursuant to cl 500.213(1), the letter was not a request or requirement within the meaning of the Opening Clause. I do not accept this contention. The Tribunal does not have a statutory obligation to include the information referred to by Mr Jones in letters sent to applicants requesting information. As a result, the mere absence of this information from the letter does not permit the Court to infer that the Tribunal member did not make the request pursuant to the Opening Clause: see BVD17 v Minister of Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [40]. I consider that, if the Statutory Construction Proposition is correct, the letter dated 25 November 2021 was a request or requirement by the Tribunal within the meaning of the Opening Clause.
3. Third, on 2 May 2022 the Tribunal sent the applicant the letter referred to in paragraph 13 above. Again, Mr Jones did not refer to this letter in his written submission. Again, at the hearing on 22 September 2025, I asked Mr Jones why this letter did not comprise a request or requirement by the Tribunal within the meaning of the Opening Clause. As stated in paragraph 13 above, the letter included a request that the applicant provide:

Evidence you meet the English language proficiency requirements as prescribed by the relevant legislative instrument, currently IMMI 18/015, which is attached.

Mr Jones stated that the words "as prescribed" in this paragraph meant that the Tribunal member believed the obligation to provide the specified information arose from IMMI 18/015. I disagree. On a fair reading of the letter, the author was aware that, in circumstances where the letter included a request within the meaning of the Opening Clause, the applicant was required to provide the information prescribed or specified in IMMI 18/015.

1. Again, I consider that, if the Statutory Construction Proposition is correct, the letter dated 2 May 2022 was a request or requirement by the Tribunal within the meaning of the Opening Clause.
2. Fourth, the Tribunal stated at [20]:

The applicant has received numerous requests from ... the Tribunal to provide information that addresses cl 500.213 and IMMI 18/015.

1. This finding, which Mr Jones did not challenge, indicates that the Tribunal:

(a) requested or required the evidence specified in cl 500.213(1); and

(b) considered that its letters dated 25 November 2021 and 2 May 2022 included such requests.

1. In light of the matters in paragraphs 43 to 49 above, I am satisfied that, if the Statutory Construction Proposition is correct, the Tribunal requested or required the evidence by its letters dated 25 November 2021 and 2 May 2022.
2. For the above reasons, the Amended Application must be dismissed.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. If the application was dismissed, Ms Liu sought an order that the applicant pay the first respondent's costs in the sum of $5,000. Mr Jones did not oppose this amount. I consider the amount is reasonable. I will make this order.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.