Luqman v Minister for Immigration and Citizenship [2025] FedCFamC2G 1370

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. On 7 November 2024, 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 10 October 2024. 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 pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).

1. In August 2014, the applicant, a citizen of Pakistan, first arrived in Australia as the holder of a student visa.
2. On 13 March 2023, the applicant applied for a subclass 500 student visa on the basis of his enrolment in a course at an educational institution in Australia.
3. On 10 May 2023, a delegate of the first respondent refused to grant the applicant the visa on the basis that he did not satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth).
4. On 29 May 2023, the applicant applied to the Tribunal for review of the delegate's decision.
5. On 18 September 2024, the applicant appeared at a hearing before the Tribunal by video, with the assistance of his representative.
6. On 10 October 2024, the Tribunal made a decision affirming the delegate's decision not to grant the applicant a student visa.

Judicial review application and steps up to hearing on 20 August 2024

1. On 7 November 2024, the applicant lodged an application in this Court seeking judicial review of the Tribunal's decision which contained the following grounds (as written):
   1. The tribunal has made a Jurisdictional error by applying Misapplication of Genuine Temporary Entrant Criteria while addressing Factors in Ministerial Direction No 108

The Tribunal has erred in its application of the Genuine Temporary Entrant (GTE) criterion under Regulation 500.212 of the Migration Regulations 1994. Specifically, the Tribunal placed disproportionate weight on the applicant's historical changes in study courses (see Paragraphs 24-33) while neglecting the applicant's clear, articulated career pathway in the construction industry (see Paragraph 39). This approach is inconsistent with the principles outlined in Minister for Immigration and Citizenship v. Li [2013] HCA 18, where the High Court emphasized the necessity of a holistic assessment of an applicant's circumstances. The applicant has provided substantial evidence of his intention to pursue a career in construction in Pakistan, supported by burgeoning opportunities in this field, which the Tribunal failed to adequately consider.

1. Jurisdictional error as a result of Procedural Unfairness Due to Inadequate Consideration of Family Ties

The Tribunal committed a significant procedural error by not giving sufficient weight to the applicant's strong family ties in Pakistan (see Paragraphs 20-21), which are crucial factors supporting his return. While the Tribunal acknowledged the applicant's regular communication with his family and his plans to work with his cousin, it failed to fully assess how these factors substantiate his intention to remain in Australia temporarily. This oversight contradicts the reasoning in Beng Ali v. Minister for Immigration and Citizenship [2004] FCA 245, which underlines the importance of considering all relevant circumstances. The Tribunal's failure to engage with these compelling aspects of the applicant's personal circumstances has resulted in a decision that lacks the necessary procedural fairness.

3. Improper Weight on Non-Enrollment Periods and Enrollment History

The Tribunal has placed undue emphasis on the applicant's periods of non-enrollment (see Paragraphs 30-33) and his varied enrollment history (see Paragraphs 24-41), failing to acknowledge the legitimate explanations provided for these gaps, such as familial responsibilities and uncertainty regarding his career path. This approach is at odds with the decision in Navas v. Minister for Immigration and Multicultural Affairs [2004] FCA 649, which cautions against penalizing applicants for gaps in study when reasonable explanations are offered. The Tribunal's narrow focus on these aspects, while disregarding the applicant's reasonable justifications, has led to a distorted assessment of his genuine intention to remain in Australia temporarily.

1. The applicant recorded in the application his email address for service (Applicant's Email Address).
2. Following a period of inactivity, on 13 June 2025 there was a directions hearing before a registrar of the Court which the applicant attended by telephone. The registrar made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing any amended application giving proper particulars, any affidavit evidence and a written submission.
3. On 24 July 2025, the parties were notified by the registry of the Court, including by email to the Applicant's Email Address, that the matter was listed for hearing on 20 August 2025.
4. On 4 August 2025, the first respondent filed a written submission.
5. On 12 August 2025, my associate sent an email to the parties, including to the applicant at the Applicant's Email Address, reminding them of the date, time and place of the hearing.
6. On the evening of 18 August 2025, the applicant sent an email to the registry, which was forwarded to my Chambers, requesting an adjournment of the hearing. The applicant wrote:

Hi, with all due respect I am about to say that I am unable to attend the hearing on Wednesday, 20 August due to my health issues.

I'm not feeling so well. Doctor prescribed me a blood test and I can't go anywhere.

I do apologize. As you can see my certificate and my blood test prescription.I'm attaching both my certificates.

Just take a look at them please. Thank you

1. The email attached a medical certificate from a general practitioner dated 18 August 2025 who opined:

This is to certify that Mr Muhammad Luqman will be unfit for work due [to] medical illness from 18/08/2025 to 25/08/2025 inclusive.

1. On 19 August 2025, an email was sent from my Chambers to the parties stating in part:

His Honour has reviewed the medical documents attached to the applicant's email. The documents do not establish that the applicant is unable to attend or participate in the hearing tomorrow on the basis of his health issues. The hearing will proceed at 2:15 pm.

1. The email continued that, to accommodate the applicant's health issues, the applicant could appear at the hearing remotely by Webex. The email included a Webex link.
2. Around 12:30 pm on 20 August 2025, the applicant sent a further email to my Chambers in which he wrote:

My hearing is today at 2:15pm but I'm unable to attend the hearing due to my health conditions. I just recently run for the doctor as i am not feeling well. I have flu feeling cold and coughing. As you can see my certificate which doctor gave it to me. I do apologise for this.

Thank you for your understanding.

1. The email attached a copy of a medical certificate from the same general practitioner dated 20 August 2025 who opined:

This is to certify that Mr Muhammad Luqman will be unfit to attend visa application interview due to flu from 20/08/2025 to 22/08/2025 inclusive.

1. The hearing on 20 August 2025 commenced at 2:40 pm and concluded shortly after 3:05 pm. The applicant did not appear at the hearing in person or by video link. The matter was called outside the court room prior to the commencement of the hearing.
2. Nameeta Chandra appeared for the respondent. She requested that the application be dismissed under r 13.06(1)(c) of the Rules.
3. Based on materials referred to above, I am satisfied the applicant was aware of the date, time and place of the hearing on 20 August 2025. For example, it is clear from the applicant's emails on 18 and 20 August 2025 that he received information about the date and time of the hearing. Further, I do not accept that the applicant had a health condition which prevented him from attending the hearing. The two medical certificates emailed by the applicant to my Chambers are unsatisfactory and do not persuade me that the applicant had a health condition which prevented him from attending, or even made it difficult or inconvenient for him to attend, the hearing. For these reasons, at the hearing I agreed to Ms Chandra's request to dismiss the application under r 13.06(1)(c) of the Rules.

1. If an event prevented the applicant from attending the hearing on 20 August 2025 and he is aggrieved that the application was dismissed in his absence, pursuant to r 17.05 of the Rules, he may apply to the Court to set aside the dismissal order and thereby re-instate the proceeding. If the applicant files and serves an application under r 17.05, he should file and serve an accompanying affidavit which provides evidence explaining the circumstances which prevented him from attending the hearing on 20 August 2025. If the applicant seeks to again rely on medical evidence, the review of Federal Court authorities in Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFam2G 25 at [83]-[90] provides guidance concerning medical evidence a party must obtain if they wish to persuade the court they were unable to attend a hearing because of a medical condition. In the absence of a satisfactory explanation from the applicant, a question may arise as to whether his conduct involves an abuse by the applicant of the process of this Court.
2. If the applicant is genuinely aggrieved that the application was dismissed in his absence and he files an application under r 17.05:

(a) He should also file and serve a written submission which seeks to identify a jurisdictional error in the Tribunal's decision. If the Court is not persuaded there is a jurisdictional error in the Tribunal's decision, there may be no utility in re-instating the proceeding.

(b) The Court will endeavour to list the re-instatement application promptly for hearing. The applicant must attend the hearing.

1. Ms Chandra sought an order that the applicant pay the first respondent's costs in the sum of $5,000 which amount does not exceed the first respondent's solicitor/client costs. I consider the amount sought is reasonable. I will make this order.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.