Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 901

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).

1. This is an application to review a decision of a Registrar of this Court filed by the Applicant on 18 March 2025 (Application for Review). On 12 March 2025 the Registrar made an Order pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) summarily dismissing an application for judicial review made by the Applicant (Registrar's Orders). The Application for Review is opposed by the First Respondent (Minister).
2. I have decided to dismiss the Application for Review for the reasons set out below.

1. The Applicant is a citizen of India. The Applicant applied for a Student (Temporary) (Class TU) (subclass 500) (Visa) on 28 April 2017. The Delegate of the Minister (Delegate) decided not to grant the Visa on 12 September 2017 (Delegate's Decision). The Delegate found that the Applicant did not satisfy the genuine temporary entrant criteria as required by cl 500.212 of the Migration Regulations 1994 (Cth) (Regulations).
2. The decision not to grant the Visa was affirmed by the then Administrative Appeals Tribunal in an oral decision (Tribunal) given on 4 April 2019 (Tribunal's Decision). Written reasons for the Tribunal's Decision were provided on 26 April 2019. The Tribunal was not satisfied that the Applicant was enrolled in a current 'course of study' as required by cl 500.211(a). The Tribunal recorded that the Applicant had not provided evidence of enrolment and confirmed at the Tribunal Hearing on 4 April 2019 (Tribunal Hearing) that she was not enrolled in a current course of study in Australia.
3. The Applicant filed the Application for Judicial Review in this Court on 30 April 2019 (Initiating Application). The Initiating Application was accompanied by an Affidavit of the Applicant that annexed the written reasons for the Tribunal's Decision. The Minister filed an Amended Response on 8 January 2025 seeking summary dismissal of the Initiating Application.
4. Orders were made on 4 March 2025 for the Applicant to file any amended Application on or before 5 March 2025. The Applicant filed an Amended Application on 5 March 2025 at 5:27pm along with an affidavit in support.
5. The matter was listed for a summary dismissal hearing before a Registrar on 12 March 2025 (Summary Dismissal Hearing). On 12 March 2025 after hearing submissions by both parties the Registrar summarily dismissed the Initiating Application pursuant to rule 13.13(a) of the GFL Rules.
6. On 18 March 2025 the Applicant lodged the Application for Review, which was accepted by the Court for filing that same day.
7. On 27 March 2025 the Minister filed a Response to the Application for Review seeking dismissal of the Application for Review together with costs. The Minister sought the dismissal of the Application for Review on the following grounds:
   1. The Applicant has no reasonable prospect of successfully prosecuting the proceeding.

3.1 The grounds of review in the originating application are without merit.

3.2 The applicant was unable to satisfy a mandatory criterion for the grant of the visa for which they applied, being Clause 500.211 of Schedule 2 to the Migration Regulations as they were not enrolled in a course of study at the time of the second respondent's (Tribunal's) decision. In those circumstances, the Tribunal was required to affirm the decision of the delegate of the first respondent.

3.3 The decision of the Tribunal is not affected by jurisdictional error.

1. Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides:

(1) A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:

(a) within the time prescribed by the Rules of Court; or

(b) within any further time allowed in accordance with the Rules of Court;

apply to the Court for review of that exercise of power.

1. A review application is not an appeal. In Newman & Tate [2020] FamCA 1114, Deputy Chief Justice McClelland considered the nature of a review of a Registrar's decision at paragraphs [9] to [11] and came to the following conclusion at paragraph [12]:
   1. Accordingly, my task is not one of ascertaining whether, in the making of the Order, there was an error on the part of the Registrar. The review of a Registrar's determination is an original hearing in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at 71 [43].

1. Registrars have delegated power to summarily dismiss a proceeding. Orders can be made for summary dismissal under rule 13.13(a) of the GFL Rules or under s 143(2) of the FCFCOA Act. The Court must establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer); Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przybylowski). The Court is not required to be satisfied that the applicant is bound to fail. The party moving the application for summary dismissal has the onus of proving that the applicant has no reasonable prospects of success.
2. Given orders are made at an early stage of the proceedings, the discretionary power to summarily dismiss an application must be exercised with caution: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41. The Court must undertake "a critical examination of the available material to determine whether there is a real question of law or fact which should be decided at trial": Spencer; Przybylowski; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46].

1. Rule 21.02(1) of the GFL Rules provides that an application for review of a Registrar's decision must be made within seven (7) days of the exercise of a power by a Registrar. An application for review must be listed for hearing as soon as possible, and unless it is impractical to do so, within 14 days after the date of filing[1]. The Registrar's Orders were made on 12 March 2025. The Application for Review was lodged within time.
2. In the Application for Review the Applicant sought a review of the Registrar's Orders. The relief sought by the Applicant was expressed in the following manner:

Details of orders sought to be reviewed

I am seeking to review all the orders made in this application. Specifically, the orders sought to be reviewed are as follows:

1. The order summarily dismissing the application for judicial review under rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
2. The order requiring the applicant to pay the first respondent's costs fixed at $4,189.38

1. Under "Grounds for Review" in the Application for Review the Applicant referred to six (6) alleged errors made by the Registrar. Under "Orders Sought" completed on the last page of the Application for Review the Applicant sought that: the Registrar's Orders be quashed or set aside; the matter be referred back to Division 2 of this Court for reconsideration; and the Respondents pay the costs of the Applicant. The Minister submitted that the six (6) grounds advanced by the Applicant were in fact reasons asserted by the Applicant as to why the Registrar committed jurisdictional error. This is a correct characterisation of these grounds however this is not the task of the Court to undertake a judicial review of the Registrar's decision as the summary dismissal application is to be heard de novo. The Application for Review serves to refer the application for summary dismissal to a Judge for re-hearing. If I find that the matter should not be summarily dismissed then the matter would remain on foot and proceed to Final Hearing concerning judicial review of the Tribunal's Decision before a Judge.
2. On 25 March 2025 I made Orders listing the Application for Review for an Interlocutory Hearing on 10 April 2025 and for the filing of a response from the Minister and an outline of submissions from each party.
3. This matter came before me on 10 April 2025. The matter was adjourned as the Applicant indicated at the commencement of the hearing that she required a Punjabi interpreter. The Applicant had not indicated that she required an interpreter in her Initiating Application, had not had the assistance of an interpreter at previous hearings before Registrars of this Court and had not responded to compliance emails from my Chambers seeking to confirm whether an interpreter was required. A hard copy bundle of documents was provided to the Applicant and the issue of costs was reserved.
4. The matter proceeded on 7 May 2025 (Hearing). The Applicant appeared in person with the assistance of a Punjabi interpreter. The Minister was represented by a Solicitor from the Australian Government Solicitor. At the commencement of the Hearing I confirmed with the Applicant and the interpreter that they understood each other and that the Applicant was willing to proceed with the Hearing with the aid of the interpreter. I am satisfied that the Applicant was able to fully participate in the Hearing with the assistance of the interpreter.
5. On 2 April 2025 at 9:02pm the Applicant emailed a word document titled "submission of Review application" to my Chambers. The Applicant's email contained no further content or information. My Chambers provided the Applicant with details regarding the various ways in which the submissions could be filed. The Applicant filed the Outline of Submissions on 8 April 2025, which were accepted for filing by the Court on 11 April 2025.
6. I have before me the Amended Application, Application for Review, Affidavits of the Applicant filed on 30 April 2019 and 5 March 2025.
7. The Minister filed a Response on 27 March 2025, and Outline of Submissions and List of Authorities on 4 April 2025 as ordered. The Minister also relied upon the Outline of Submissions filed on 5 February 2025 for the Summary Dismissal Hearing. The Minister also filed a Court Book on 8 September 2021.

1. The grounds of review advanced in the Amended Application (Grounds of Review) were:
   1. Illogical and Irrational Reasoning in Assessing the Genuine Temporary Entrant (GTE) Criterion

The Tribunal's conclusion that I did not meet the Genuine Temporary Entrant (GTE) criterion under clause 500.212 of the Migration Regulations 1994 is flawed due to illogical and irrational reasoning. Specifically, the Tribunal failed to properly consider my personal ties to India, including my aged parents, my pans to return to India to work in a family business, and my intention to establish a training centre. These ties were dismissed without a logical connection to the evidence provided. For example, the Tribunal acknowledged my family ties but concluded they were insufficient to incentivise my return, despite clear evidence of my responsibilities and intentions.

2. Failure to Consider Relevant Evidence

The Tribunal failed to adequately consider the psychological report submitted as part of my application. This report highlighted my mental health challenges, including depression and anxiety, caused by the uncertainty surrounding my visa status. It also emphasized my commitment to completing the Bachelor of Accounting course, which is critical to my career prospects in India. By ignoring this evidence, the Tribunal failed to consider a critical aspect of my circumstances, which constitutes a jurisdictional error.

3. Misapplication of Direction No. 69

The Tribunal misapplied Direction No. 69, which provides guidance on assessing the GTE criterion. Specifically, the Tribunal did not properly weight the value of the Bachelor of Accounting course to my future career in India. The course is directly relevant to my plans to work in accounting and establish a training centre, as outline in my GTE statement. The Tribunal focused disproportionately on my previous studies and immigration history, rather than considering my current enrolment and future plans. This approach is inconsistent with the holistic assessment required under Direction No. 69.

4. Procedural Fairness

The Tribunal failed to provide me with a fair opportunity to address specific concerns raised during the hearing, including the relevance of my previous studies to my current course and the Tribunal's concerns about my prolonged stay in Australia on a temporary visa. This lack of procedural fairness deprived me of the opportunity to clarify my intentions and provide additional evidence to address these concerns.

5. Materiality of Errors

The errors outline above are material because they directly impacted the Tribunal's satisfaction under clause 500.212. A proper consideration of my personal ties, the psychological report, and the value of my course would have demonstrated that I meet the GTE criterion. A failure to consider material evidence or to make an obvious inquiry can result in jurisdictional error if it could realistically have led to a different decision.

1. The Minister's global submission was that the Initiating Application, as amended or otherwise, has no reasonable prospects of success as the Tribunal correctly found that the Applicant did not satisfy the primary criteria for the grant of the Visa, being cl 500.211(a), as the Applicant was not enrolled in a course of study at the time of the Tribunal's Decision.

1. These grounds are directed to the Tribunal's assessment of the genuine temporary entrant criteria in cl 500.212(a).
2. The Minister submitted that these grounds do not identify any jurisdictional error as the dispositive issue before the Tribunal was whether the Applicant was enrolled in a course of study at the time of the Tribunal's Decision, not whether the Applicant was a genuine temporary entrant. Once the Tribunal found that the Applicant was not enrolled in a course of study and did not meet the criteria of clause 500.211(a) at the time of the Tribunal Decision, the Tribunal was not required to consider the psychological report as it was not relevant to the question as to whether the Applicant was in fact enrolled in a course of study. The reason why the Applicant was not enrolled in a course of study was not relevant to the Tribunal's Decision.
3. The Applicant pressed the position that the Tribunal erred in that it did not properly consider the psychological report when making its findings. The Applicant also submitted that that the Tribunal did not take into account her personal ties to India when considering the temporary nature of her stay in Australia.
4. I accept the submission of the Minister the Applicant has no prospect of succeeding on Grounds 1 to 3 at a substantive hearing. The Applicant did not meet the threshold criteria, on her own admission before the Tribunal and again in this Court, namely enrolment in a course of study at the time of the Tribunal's Decision. There was no requirement imposed upon the Tribunal to consider the reason why the Applicant was not enrolled in the course of study or whether she was a genuine temporary entrant.[2]

1. The Minister submitted that this ground is not relevant to the dispositive issue before the Tribunal, being whether the Applicant was enrolled in a course of study, and that in any event the Applicant was invited to a hearing and did attend. The Minister noted that the Applicant was invited twice to provide a copy of a current confirmation of enrolment or other documents showing she was currently enrolled in a course of study and was invited at the Tribunal Hearing to also do so. The evidence from the Applicant to the Tribunal at the Tribunal Hearing was that she was not enrolled in a course of study at the time of the Tribunal Hearing.
2. The Applicant submitted that her case was "represented poorly" and that her agent did not attend the Tribunal Hearing and again pressed the argument regarding the failure of the Tribunal to consider the psychological report and her psychological state as the reason why she was not enrolled in a course of study and her previous studies. The Applicant again advanced the argument that the Tribunal did not take her personal ties to India into account or that they were not considered properly.
3. The Applicant cannot say that she was not on notice of the dispositive issue. The Applicant was provided with an opportunity to provide evidence in relation to cl 500.211(a), she did not. I reiterate the fact that where the Applicant did not meet the threshold criteria there was no requirement for the Tribunal to consider why she was not enrolled in a course of study, her previous courses of study, or whether she was a genuine temporary entrant. There is no prospect that the Applicant will be successful on Ground 4.

1. The Minister characterised Ground 5 as not being an independent ground of review as it relies on errors alleged in Grounds 1 to 4 being material in nature.
2. The Applicant will not be successful on Ground 5 for those reasons set out under Grounds 1 to 4. There is no error identified by the Applicant with respect to those grounds and as such materiality is not an issue.

1. I have determined that the Initiating Application as amended has no reasonable prospects of success. The Initiating Application is to be summarily dismissed and I otherwise dismiss the Application for Review. I affirm the Registrar's decision.
2. The Minister sought costs of $3,500.00 which is less than fixed in the scale amount, as prescribed in Item 2, Division 1, Part 2 of Schedule 2 of the GFL Rules. Accordingly, the Applicant is to pay the Minister's costs in the sum of $3,500.00 with respect of the Application for Review and for the avoidance of doubt also those costs of the summary dismissal proceedings before the Registrar in the amount of $4,189.38.
3. Orders will be made accordingly.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.

[1] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 21.03.

[2] Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 149, [9]