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[2010] FCA 1312
respondent. Appeal dismissed. Costs to be heard (Reasons [20]).
The appellant, a Bangladeshi national, appealed to the Federal Court after the Migration Review Tribunal and a Federal Magistrate dismissed his student visa application and an application for judicial review. The Tribunal refused further time to obtain a qualifying IELTS score, and found the appellant had only completed a small number of course modules, not a 'substantial part' of a qualifying course. The Federal Court held those were factual assessments open to the Tribunal and found no breach of the statutory disclosure requirements. The appeal was dismissed and costs were reserved.
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1,936 words · generated 24/07/2026
Md Mahasin Mia (the appellant) is a Bangladeshi citizen who arrived in Australia on a student visa on 13 October 2006. He lodged a further student visa application on 14 March 2008. A delegate of the Minister refused the application on 21 May 2008, concluding the appellant was not a genuine applicant for a student visa because he did not meet the relevant Migration Regulations criteria: he had not, within two years of application, successfully completed a substantial part of a course conducted in English leading to a Certificate IV or higher, nor had he achieved the required Overall Band Score (OBS) in IELTS (Reasons [2]–[3]).
1 cited instrument linked from this judgment.
The appellant sought review in the Migration Review Tribunal (the Tribunal). By the time of the Tribunal’s decision (30 November 2009) the relevant visa subclass numbering and clause references had changed (from Subclass 572 to 570 and from cl 572.223(2)(a)(i)A to cl 570.223(2)(a) and Schedule 5A cl 5A204), but the substantive statutory requirements were the same (Reasons [5]). Before the Tribunal the appellant relied on two routes: (a) that he had completed a substantial part of an appropriate course in the two years before the application, and (b) that he had achieved an OBS of at least 5.0 in IELTS taken within two years. He had two IELTS results of OBS 4.0 (4 April 2008) and OBS 4.5 (8 October 2009), both below the required 5.0 (Reasons [6]).
The appellant asked the Tribunal for further time to sit another IELTS test on 23 January 2010. The Tribunal refused because the application had been outstanding since 14 March 2008 and it had previously allowed an extension so that the appellant could sit on 8 October 2009 (Reasons [6]). The Tribunal also found that the appellant had ceased to hold a substantive student visa from 15 March 2008 and that, in the relevant two years, he had completed only three modules and commenced two further modules in Certificate III/Diploma level courses. The Tribunal was not satisfied this amounted to a substantial part of a qualifying course and it affirmed the delegate’s refusal (Reasons [6]).
The appellant sought judicial review in the Federal Magistrates Court on grounds of non-provision of material used by the Tribunal, failure to properly consider whether a substantial part of the course was completed, and denial of procedural fairness in refusing more time to sit IELTS. The Federal Magistrate dismissed the review application, finding no jurisdictional error and that the factual determination of a 'substantial part' was for the Tribunal (Reasons [8]–[12]). The appellant appealed to the Federal Court. Reeves J dismissed the appeal for substantially the same reasons (Reasons [17]–[20]).
Three principal bases underpinned Reeves J’s decision to dismiss the appeal.
Discretion over further time to produce evidence and no procedural unfairness (Reasons [6], [17]). The Tribunal had discretion to refuse to grant yet another extension for the IELTS test. The appellant had sat two previous tests without achieving the required OBS. Given the application had been pending since March 2008 and an extension had already been granted, the Tribunal’s refusal to allow a further extension was within the range of available, lawful options. Reeves J held that this refusal did not amount to jurisdictional error or denial of procedural fairness (Reasons [17]).
Factual character of 'substantial part' findings (Reasons [10], [18]). Reeves J endorsed the Federal Magistrate’s conclusion that the question whether the appellant had completed a 'substantial part' of a course is essentially one of fact and degree for the tribunal. Citing Commissioner for Superannuation v Scott (authority relied upon in the judgment), the Court treated the assessment as a factual determination which an appellate court should not disturb unless there is an error of law or jurisdictional error. The Tribunal’s factual findings about modules completed were open to it; there was no basis to set them aside (Reasons [10], [18]).
Compliance with statutory disclosure obligations (s 359A(1)) (Reasons [9], [19]). The appellant alleged the Tribunal failed to provide information on which it relied. Reeves J accepted the Federal Magistrate’s finding that the only information before the Tribunal was that provided by the appellant and that the appellant had not particularised any other information which the Tribunal should have made available to him. Reeves J noted the appellant had mis-cited s 424A (relevant to Refugee Review Tribunal), and proceeded on the assumption the appellant intended to rely on s 359A(1). On that basis, there was no non-compliance shown (Reasons [9], [19]).
On these bases the Court concluded there was no jurisdictional error, no breach of procedural fairness, and no valid ground for judicial interference with the Tribunal’s factual determinations. The appeal was dismissed (Reasons [20]).
Before this decision, established administrative law principles governed judicial review of tribunal factual findings, namely that questions of fact and degree for a tribunal are generally not amenable to substitution by the reviewing court. Reeves J relied on that well-settled principle and specifically on Commissioner for Superannuation v Scott as authority that the notion of what is 'substantial' is for the judge of fact or, by extension, the tribunal (Reasons [10], [18]).
The decision in Mia does not alter those established principles. Rather it reaffirms that:
discretionary decisions by administrative tribunals about the admissibility or timing of evidence (for example whether to grant further time for an IELTS test) will not be set aside unless they involve jurisdictional error or denial of procedural fairness (Reasons [17]);
factual assessments of whether an applicant has completed a 'substantial part' of a course are for the tribunal and not for appellate intervention absent error (Reasons [10], [18]); and
the statutory disclosure obligation in s 359A(1) requires an applicant to particularise any material the Tribunal failed to make available; absence of such particularisation weakens a complaint of non-compliance (Reasons [9], [19]).
Thus, after Mia, practitioners should expect courts to be cautious before disturbing tribunal factual judgments about course completion or discretionary case-management decisions about further opportunities to produce evidence.
Passage (Reasons [17]): "It was open to the Tribunal not delay its decision on the appellant's application any further, given that the appellant had already sat the IELTS test on two previous occasions and had not achieved the necessary OBS to satisfy the Regulations."
Plain-English: The Tribunal did not have to keep postponing its decision so the appellant could re-take the English test. He had already had two chances and had not reached the required score.
Passage (Reasons [10]): "The determination of what might or might not constitute a substantial part of a course was a matter of fact for the Tribunal."
Plain-English: Deciding whether the appellant had done enough of a course to count as a 'substantial part' is a factual question for the Tribunal, not something the court will usually re-decide.
Passage (Reasons [19]): "The only information before the Tribunal was that which was provided to it by the appellant and the appellant has not particularised any other information that the Tribunal should have, but failed, to make available to him."
Plain-English: The Tribunal's decision was based only on the documents the appellant gave it, and the appellant did not identify any other documents the Tribunal should have shown him. So the Tribunal did not breach the disclosure rules.
Passage (Reasons [20]): "For these reasons, this appeal must be dismissed."
Plain-English: The court rejects the appellant's arguments and refuses the appeal.
This decision is directly relevant where:
an applicant for a visa claims procedural unfairness because a review tribunal refused to allow further time to produce or improve evidence (for example, further language test results), particularly when earlier opportunities had been given; and/or
the tribunal makes factual findings about whether an applicant has completed a 'substantial part' of a course leading to a qualification (questions of fact and degree where records show limited module completion); and/or
an applicant alleges a tribunal failed to provide information it intended to take into account under s 359A(1) but has not particularised additional material that should have been disclosed.
If those facts are present, limited completed modules, multiple prior test attempts, prior extensions granted, no specific missing documents alleged, Mia indicates courts will defer to tribunal discretion and factual findings and will not find jurisdictional error.
As this decision is an application of well-established principles rather than a novel change to the law, its primary value is confirmatory. Reeves J applied long-standing administrative law principles to the specific Migration Review Tribunal context and cited authority (Commissioner for Superannuation v Scott) for the proposition that 'substantial' is a factual inquiry (Reasons [10], [18]).
Practitioners and tribunals can cite Mia for the proposition that:
refusal to grant further time for evidence (such as IELTS) is reviewable only for jurisdictional error or denial of procedural fairness, and such refusals will be upheld where prior opportunities have been given (Reasons [6], [17]); and
s 359A(1) complaints require applicants to identify missing material, general assertions without particulars are unlikely to sustain a ground of review (Reasons [9], [19]).
Any treatment by later courts should be assessed against these narrow statements. Mia is unlikely to be treated as authority for anything broader than those reaffirmations.
Mia disposes of the appellant’s specific complaints but leaves some areas that may arise in future fact patterns:
Degree of particularity required under s 359A(1). Reeves J records that the appellant did not particularise other information which the Tribunal should have made available (Reasons [9], [19]). The judgment does not elaborate the standard of particularity required to make out non-compliance. Future cases will necessarily flesh out how detailed an applicant must be in identifying missing material.
When refusal to grant further time becomes reviewable. Mia upholds a tribunal refusal where the applicant had two prior tests and one extension. A closer case might be presented where a tribunal refuses further time after only one previous attempt, or where time is refused close to critical decision-making dates. The boundary of 'open to the Tribunal' discretion versus denial of procedural fairness will depend on context-sensitive assessments.
Interaction between visa status timing and 'as the holder of a student visa' requirement. The Tribunal found the appellant ceased to hold a substantive student visa from 15 March 2008 and applied the 'as the holder of a student visa' wording in Schedule 5A cl 5A204(c)(iii) (Reasons [6]). Mia does not explore in depth how to treat partial overlaps between expiry/cessation of visa status and course completion timing; this may give rise to future disputes where the precise status dates and course completion dates are borderline.
Treatment of partial completion across differing award levels. The Tribunal recorded completion of modules in Certificate III and Diploma-level courses; Mia endorses leaving the assessment of 'substantial part' to fact-finders (Reasons [5], [6], [10], [18]). However, questions may arise where modules completed across multiple courses combine to approach 'substantial part' or where credit transfers complicate the factual assessment.
In summary, Mia is a confirmation of longstanding administrative law principles in the migration context: tribunals are afforded latitude on factual findings and procedural case-management decisions, and applicants must particularise claims of missing disclosure. The open questions are largely about the margins: exactly how much particularity is required under s 359A(1), and where the line is drawn between acceptable tribunal discretion and denial of procedural fairness in scheduling and evidence-time decisions.
REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate delivered on 20 August 2010, dismissing an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal").
background and procedural history 2 The appellant is a citizen of Bangladesh who arrived in Australia on 13 October 2006 on a student visa. On 14 March 2008 the appellant lodged a further application for a student visa with the Department of Immigration and Citizenship. On 21 May 2008 a delegate of the Minister for Immigration and Citizenship refused that application and on 30 November 2009 the Tribunal affirmed the delegate's decision. As noted above, the decision of the Federal Magistrates Court to dismiss an application for judicial review of this latter decision is the subject of the present appeal. 3 The delegate refused the appellant's application on the basis that he was not a genuine applicant for entry and stay as a student because he did not satisfy the requirements of cl 572.223 (2)(a)(i) A of Schedule 2 of the Migration Regulations 1994 ('the Regulations') which refers in turn to the requirements in Schedule 5A for Subclass 572. Clause (d)(iii) of the latter Schedule relevantly required the appellant to provide evidence that he had, less than two years before the date of his application : "as the holder of a student visa - successfully completed a substantial part of a course…that: … was conducted in English; and …was leading to a qualification …at the Certificate IV level or higher;... " 4 In particular the delegate was not satisfied - based on the evidence the appellant produced - that his completion of three subjects, in a Diploma of Hospitality Management course at the Illawarra Business College in the two years before the date of his application, was sufficient to constitute the completion of a "substantial part" of that course.
THE TRIBUNAL AFFIRMS THE DELEGATE'S DECISION - APPELLANT did not meet the requirements of the regulations 5 By the time of the Tribunal's decision on 30 November 2009 the circumstances of the appellant's case had changed in two relevant respects. First, the number of the relevant student visa Subclass had changed from 572 to 570 and the terminology used in the equivalent clauses - cl 570.223(2)(a) referring to Schedule 5A cl 5A204 - had changed somewhat, however the relevant basic requirements remained the same as those set out in [3] above. 6 Secondly, before the Tribunal, the appellant relied upon sub clause (a) of Schedule 5A cl 5A204 which allowed him to submit evidence he had: "achieved, in an IELTS [International English Language Testing System] test that was taken less than 2 years before the date of the application, an Overall Band Score [OBS] of at least 5.0;…" He also relied upon a decision the Full Court handed down on 21 August 2009 in Minister for Immigration and Citizenship v Kamal [2009] FCAFC 98 where the Court held that an IELTS test may be taken after the date of an applicant's application. Accordingly the appellant submitted evidence to the Tribunal that he had undertaken IELTS tests on 4 April 2008 and 8 October 2009 where he achieved results of 4 and 4.5 OBS respectively. While these tests were both below the required level of at least 5.0 OBS, the appellant requested the Tribunal to allow him further time to sit for a further IELTS test on 23 January 2010. The Tribunal refused this request because the appellant's application had been outstanding since 14 March 2008 and it had already allowed him one extension of time to sit for the IELTS test on 8 October 2009. 7 As to whether the appellant met the relevant requirements for a student visa Subclass 570 the Tribunal held that cl 5A204(c)(iii) required him to meet those requirements "… as the holder of a student visa …" It found that the appellant ceased to hold a substantive student visa from 15 March 2008. It also found that in the two years before his application, the appellant had only completed 3 modules and commenced a further 2 modules, in a Certificate III in Hospitality (Commercial Cookery) or a Diploma of Hospitality Management. Accordingly, it was not satisfied that the appellant had completed a substantial part of a course leading to a qualification at the Certificate IV level or higher and it affirmed the decision under review.
the federal magistrate finds no jurisdictional error 8 The appellant filed an application for judicial review in the Federal Magistrates Court, which raised the following grounds: 1. The Tribunal made an error not providing the information which the Tribunal used in making the decision. 2. The Tribunal failed to consider that the applicant had completed substantial part of his course requirement. 3. The Tribunal failed to consider the applicant's request to complete IELTS in January 2010, in this case the Tribunal made an error not ensuring the applicant procedural fairness [Errors in original] 9 With respect to ground 1, the Federal Magistrate found that the only information before the Tribunal was that which was provided by the appellant. In the absence of particulars or submissions identifying any material that would trigger s 359A(1) of the Migration Act 1958 (Cth) ("the Act"), his Honour was satisfied that the Tribunal complied with that section. 10 In relation to ground 2, the Federal Magistrate found that the determination of what might or might not constitute a substantial part of a course was a matter of fact for the Tribunal, citing Commissioner for Superannuation v Scott (1987) 71 ALR 408 at 411 to 413 and Seneviratne v Minister for Immigration [2009] FMCA 907 at [48]. His Honour therefore held that this was not a matter in relation to which the Federal Magistrates Court could interfere. 11 Ground 3 was similarly dismissed. His Honour held that the approach taken by the Tribunal was open to it and no error had been demonstrated. 12 Having found no jurisdictional error in the Tribunal's decision, the Federal Magistrate dismissed the appellant's application.
the conduct of the present appeal 13 On 7 September 2010, the appellant filed a notice of appeal in this Court which contained the following grounds: 1. His Honour erred not considering that the Tribunal made an error not providing an adequate time to the applicant to comply with IELTS result. 2. The Tribunal made an error not considering that the applicant completed the substantial part of the course requirement. His Honour erred in considering this issue. 3. His Honour erred that the Tribunal failed to comply with section 424A of the Migration Act in deciding this case. [Errors in original] 14 It will be noted that while they are in a different order and slightly different terminology is used, these grounds are essentially identical to the grounds of review raised before the Federal Magistrate. 15 At the hearing before me on 24 November 2010, the appellant appeared in person, unrepresented, but assisted by an interpreter. Ms Mitchelmore appeared for the first respondent. 16 The appellant relied on his notice of appeal and an outline of written submissions that he handed up in Court. Ms Mitchelmore relied on the outline of written submissions that had been filed with the Court and made a few brief oral submissions elaborating on her written submissions.
consideration 17 In relation to the first ground of appeal - which is to the same effect as the third ground in the judicial review application - the Federal Magistrate correctly determined that it was open to the Tribunal not delay its decision on the appellant's application any further, given that the appellant had already sat the IELTS test on two previous occasions and had not achieved the necessary OBS to satisfy the Regulations. This ground of appeal must be dismissed. 18 On the second ground of appeal - which is to the same effect as the second ground in the judicial review application - the Federal Magistrate correctly identified that the determination of what might or might not constitute a substantial part of a course was a matter of fact that the Federal Magistrates Court could not lawfully interfere with. As was held in Commissioner for Superannuation v Scott (1987) 71 ALR 408 (per Fisher and Spender JJ) at 412 to 413, it must be left to the judge of fact, in applying the meaning of the word "substantial", to decide as best he or she can according to the circumstances of the case. This ground of appeal must also be dismissed. 19 Finally, with the third ground of appeal - which is to the same effect as the first ground in the judicial review application - the appellant cites s 424A of the Act, which applies to the conduct of a review of a protection visa decision by the Refugee Review Tribunal. I will assume that this is intended to be a reference to s 359A(1)(a) of the Act which is the relevant section for a review before the Migration Review Tribunal. On that assumption, the Federal Magistrate was correct in concluding that the only information before the Tribunal was that which was provided to it by the appellant and the appellant has not particularised any other information that the Tribunal should have, but failed, to make available to him. This ground of appeal must be dismissed as well.
conclusion 20 For these reasons, this appeal must be dismissed. I so order. I will hear the parties on the question of costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.
Mia
Minister for Immigration and Citizenship
Appeal dismissed. Costs to be heard (Reasons [20]).