Parwaz v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1933

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).

1. Before the Court is an Application filed on 11 July 2019, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 19 June 2019. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (Visa).

1. The applicant is a citizen of Pakistan.
2. The applicant first arrived in Australia on 11 July 2008 as the holder of a Student (Subclass 572) visa. The applicant has held six subsequent student visas since his first arrival.
3. On 5 December 2017, the applicant applied for the Visa. In support of his Visa application, the applicant annexed, amongst other things, a written statement of purpose dated 5 December 2017 (Statement of Purpose).
4. On 8 February 2018, the Delegate refused to grant the Visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of sch 2 to the Migration Regulations 1994 (Cth) (Regulations). Clause 500.212 of the Regulations required the Delegate to be satisfied that the applicant was a genuine temporary entrant (GTE).
5. On 26 February 2018, the applicant applied to the Tribunal for review of the Delegate's decision. In the application for review, the applicant nominated a migration agent as his authorised recipient and provided the email address (representative's email address) for correspondence.
6. On 17 April 2019, the Tribunal sent a letter to the applicant by way of email to the representative's email address, inviting the applicant to provide further information to satisfy the Tribunal that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student pursuant to s 359 of the Migration Act 1958 (Cth) (Act) (s 359 Invitation). The Tribunal requested that this information be provided by 1 May 2019. The information was to be provided by way of completion of a linked 'Request for Student Visa Information' form and a copy of Ministerial Direction No. 69 'Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications' (Direction 69) was attached for the applicant's reference. The applicant requested an extension of time to provide a response so the s 359 Invitation and was granted until 10 May 2019 to provide the information.
7. The applicant provided a response to the s 359 Invitation by lodging a completed Request Form (s 359 Response).
8. On 27 May 2019, the Tribunal emailed the representative's email address enclosing an invitation for the applicant to attend a hearing on 19 June 2019. The Tribunal requested the applicant provide the following documents, amongst other things, within seven days of receipt of the invitation: a copy of his current Confirmation of Enrolment (COE); documents evidencing his past studies in Australia and a written statement addressing the issue of whether he was a GTE.
9. On 19 June 2019, the applicant appeared at the hearing before the Tribunal. The applicant's representative did not attend the hearing. At the hearing, the Tribunal delivered an oral decision affirming the decision of the Delegate to refuse to grant the applicant the Visa.

1. On 31 July 2019, the Tribunal issued its written statement of decision and reasons (Tribunal Decision). On 2 August 2019, the Tribunal emailed the applicant's representative and provided the applicant with a copy of the Tribunal Decision.
2. At paragraphs [1] - [5] of the Tribunal Decision, the Tribunal summarised the procedural background of the matter.
3. At paragraph [6] of the Tribunal Decision, the Tribunal noted that the issue before the Delegate was whether the applicant was a genuine temporary entrant pursuant to cl 500.212 of sch 2 of the Regulations.
4. At paragraphs [8] - [11], the Tribunal identified that the issue before it was whether the applicant satisfied cl 500.211(a) of sch 2 of the Regulations which required the Tribunal to be satisfied that the applicant was enrolled in a course of study at the time of its decision.
5. At paragraphs [12] - [13] of the Tribunal Decision, the Tribunal noted that pursuant to s 359 of the Act, it wrote to the applicant on 27 May 2019 inviting him to provide evidence of enrolment in an approved course of study. The Tribunal noted that a copy of the applicant's COE was not provided, neither in response to its request in the s 359 Invitation nor when requested to do so at the hearing on 19 June 2019. The Tribunal referred to the applicant's evidence that he was last enrolled in October 2018. It also noted the applicant's evidence that he was not currently enrolled, nor did he have any COE in any course of study in Australia.
6. Accordingly, the Tribunal found there was no evidence before it that the applicant was enrolled in a course of study, and concluded that cl 500.211 of sch 2 of the Regulations was not met. For those reasons, the Tribunal found the applicant did not meet the criteria for the grant of the Visa and affirmed the decision under review.

1. The applicant applied for judicial review of the Tribunal Decision on 11 July 2019. The Application contained the following grounds for judicial review (without amendment):

According to Direction 69, the tribunal does not considered all the factors for accessing genuine student temporary entrant criterion or student visa and student guardian visa application.

This is a judiciary error and unfairness due to which I am taking this matter in federal circuit court.

The tribunal did not consider Proper Procedure which is an unfairness with me.

1. An affidavit annexing a copy of the cover page of the Tribunal Decision was filed on 11 July 2019. No other material was filed by the applicant in support of the Application.
2. The Minister filed a Response on 1 August 2019 seeking orders that the Application be dismissed and orders as to costs on the ground that the Tribunal Decision is not affected by jurisdictional error. The Minister relied on written submissions filed on 14 October 2025.
3. The hearing took place at 2.00pm on 20 October 2025.

1. At 11.30am on 20 October 2025, correspondence was sent to my chambers by Starnet Legal Pty Ltd (Starnet) advising that Starnet acted for the applicant. That correspondence also attached a Notice of Address for Service and an affidavit of the applicant dated 20 October 2025 (20 October Affidavit). The correspondence further provided that Starnet had been instructed to make an oral application for an adjournment at the hearing.
2. As foreshowed, at the hearing the applicant was represented and an oral application for an adjournment was made. The Minister opposed the adjournment and referred the Court to the decision of EXK18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1460.
3. The applicant sought and was granted leave to admit the 20 October Affidavit and for it to be read.

1. The High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97] - [103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, observed that an application must be considered in the relevant statutory, factual and case management context.
2. Sections 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021(Cth) (FCFCOA Act) provide as follows:

Section 190 Overarching purpose of civil practice and procedure provisions

(1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

...

Section 191 Parties to act consistently with the overarching purpose

(1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

1. In _Zetta Jet Pte. Ltd v The Ship "Dragon Pe_arl" [2018] FCA 878 Burnley J said at [37] - [38]:

As the High Court made clear in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (AON), the types of matters that should be considered in the context of an adjournment application include: (a) the explanation for the adjournment; (b) the detriment to other parties; (c) the detriment to the court and other litigants, and; (d) the choices made by the parties as to the claims to be made and how they are to be framed. That, of course, is not an exhaustive list.

In the current context it is also apposite to note that in the exercise of its discretion it is appropriate for the Court also to consider the position of other litigants and confidence in the judicial system generally: AON at [5] (French CJ) and [111] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). It is for the plaintiffs to persuade the Court, on sufficient material, that an adjournment is appropriate. As the plurality in AON said at [103], [106], [107], if an application that would result in an adjournment is sought and no, or no sufficient explanation is given then the application should be refused. French CJ said (at [4]) that where an application is made "late in the day", without adequate explanation and necessitating the vacation of a trial date, the applicant bears a heavy burden to show that the exercise of the Court's discretion should be in its favour.

1. The applicant submitted that it was in the interests of the administration of justice for the adjournment to be granted so as to allow him time to be provided with a comprehensive advice as to his prospects of success, better understand the material required to be filed and the implications of proceeding to final hearing. It was also submitted that if the adjournment was granted following the provision of advice there may be a possibility that the applicant would determine not to proceed with the Application.
2. The applicant submitted that "the overarching purpose of the civil practice and procedure provisions required that [the applicant] should be facilitated to just resolutions of dispute according to law and as quickly and inexpensively and efficiently as possible." The applicant submitted that should comprehensive advice be given, there is real prospects that the matter could resolve.
3. It was further submitted by the applicant that this was the first adjournment he had sought. In addition, he submitted that he had never had a lawyer on the record prior to engaging with Starnet, he did not understand what was required of him by the orders that had been made in this matter and an adjournment would allow this to occur.
4. The applicant relied on the decision of Syed v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1071 (Syed).

1. At the hearing I declined to grant the adjournment. These are my reasons for that decision.
2. Firstly, the Application was filed on 11 July 2019. Accordingly, this proceeding has been on foot for in excess of six years. In light of this, the applicant's evidence in the 20 October Affidavit that he had not had the time to obtain appropriate legal advice in relation to the Application must be rejected. The applicant's own evidence is that this matter has been on foot for a very long time. The applicant has had ample time to be provided with comprehensive advice as to his prospects of success, determine whether he wishes to proceed to final hearing and the implications of doing so. Whilst I accept that the time this matter has taken to get to trial is not of the applicant's making, it does not alter the fact that he has had an extended period of time to seek advice and prepare this matter for hearing. Further, as has been said in other judgments, last minute adjournments cause wastage of the hearing date, the effect of which is that another migration case cannot be heard in its stead, with the applicant himself thereby contributing to delay in the migration docket as a whole and, therefore, of some other applicant.
3. Secondly, the applicant's evidence is that he did not appreciate that he needed to be ready for the final hearing on 20 October 2025. As set out above, the applicant has not filed any material in this matter, has elected, or failed to avail himself of, all permissive orders and has otherwise failed to comply with all interim orders of the Court. This matter was called over before a Registrar on 13 February 2025. The applicant attended the callover. At the callover hearing, orders were made for the filing of material and for the matter to proceed to trial. In those circumstances, I am unable to see how the applicant did not appreciate that he needed to be ready for a final hearing and to file material in accordance with the orders made. Further, on 29 May 2025 orders were made listing the matter for hearing, initially on 27 October 2025, which on 21 August 2025 was subsequently relisted to 20 October 2025. Accordingly, the applicant has been on notice of the final hearing date for some five months. I am simply unable to see how he did not appreciate that he needed to be ready for final hearing on 20 October 2025.
4. Thirdly, as set out above, s 191 of the FCFCOA Act provides that the applicant must conduct the proceedings in a way that is consistent with the overarching purpose. This includes:

(a) the efficient use of the judicial and administrative resources available for the purposes of the Court;

(b) the efficient disposal of the Court's overall caseload; and

(c) the disposal of all proceedings in a timely manner.

1. The applicant's conduct is inconsistent with these mandatory objectives. In this regard, I refer to and repeat my comments set out above as to the wastage occasioned by last minute adjournments.
2. Fourthly, in the 20 October Affidavit the applicant says that his financial circumstances have prevented him from obtaining legal advice until now. His evidence is that he did not obtain legal representation until the morning of the hearing. The applicant has no right to legal representation: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 at [51] per Flick, Griffiths and Perry J. Further, I respectfully adopt the comments of Given J in EXK18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1460 (EXK18) at [41] where her Honour said:

To be clear, the advent of a representative for the applicant in migration proceedings is not, in and of itself, a matter which will automatically warrant an adjournment being granted, especially against the long-standing period applicants ordinarily have in this Court to prepare for hearing because of the volume of cases pending. In that regard, it is pertinent to observe that last minute adjournments are sought all too frequently in migration cases and, as has been observed previously, failure of a party to act consistently with the overarching purpose sounds in wastage beyond the financial, including of valuable Court time and resources and impacts.

1. For completeness, that the applicant has not previously been represented by a lawyer is, in my view, irrelevant.
2. The applicant concedes that he did not act promptly after the orders were made on 29 May 2025 but says that he did not understand the gravity of his position until one of his friends told him "within the last 2 months or so" that he had to engage a lawyer without further delay. As to the applicant's asserted lack of understanding of the gravity of his position, I firstly note that on 21 June 2019 the applicant was advised in writing by the Tribunal of the outcome of the review and was provided with a fact sheet. That fact sheet is headed "Information about decisions - MR Division" and relevantly provides as follows:

...

If we affirm the decision under review, we have decided that the delegate's decision should not be changed. The effect of this is that the delegate's decision remains in force.

...

What happens next?

After the department receives advice of the decision on your review, the department will act to give effect to our decision. Your immigration status in Australia may change following our decision.

If you hold a bridging visa associated with the application that was the subject of the AAT's review, or with a decision to cancel a visa, your bridging visa may cease, depending on our decision. One of the following situations may apply:

• Where we set aside the decision under review and substitute a decision that your visa be granted, your bridging visa will cease.
• If we remit the decision under review back to the department for reconsideration, your bridging visa will remain in effect while your application is being processed by the department.
• If we affirm the decision under review, deciding that the delegate's decision should not be changed, or decide we have no jurisdiction to review a decision, your bridging visa will cease either,

  • 35 days after our decision is made (if your bridging visa was granted on or after 19 November 2016); or

  • 28 days after you are notified of our decision (if your bridging visa was granted prior to 19 November 2016).

If you decide to seek judicial review of our affirmed or no jurisdiction decision, you may be eligible for a bridging visa that will keep your immigration status lawful throughout this process. You should apply for another bridging visa before your current bridging visa ceases

The effect on a bridging visa may be different where there is a decision to set aside the decision under review and substitute a decision not to cancel a visa, or that the visa application is invalid. In these circumstances contact the department for specific information about your situation.

If you have any questions about your immigration status, or if your contact details have changed since you last communicated with the department, you should contact the department on 131 881.

1. Secondly, the applicant sought review of the Delegate's decision in the Tribunal and subsequent judicial review of the Tribunal's decision in this Court. Thirdly, even if it could be accepted that despite these matters the applicant was not aware of the gravity of his position, I am unable to accept that following the callover in February 2025 he could not have been aware of the gravity of his situation. Further, notwithstanding the applicant's evidence that he was told by his friends two months or so ago to engage a lawyer without further delay, he did not do so until the day of the hearing (although I note his evidence that he contacted a number of lawyers but was unable to obtain assistance).
2. Fifthly, that the applicant has not previously sought an adjournment is not relevant. As Given J said in EXK18 at [33]:

While it can be accepted that a party might be serially delinquent and seek multiple extensions or adjournments which may then weigh against further adjourning, does not invert to render any first-time adjournment request as automatically irresistible.

1. Sixthly, I accept that there is detriment to the applicant if the adjournment is not granted. However, I reject his evidence that as a consequence he has no further realistic avenue of appeal and will have to leave Australia. The refusal to grant an adjournment does not, of itself, foreclose any appeal rights the applicant may have.
2. Seventhly, for the reasons set out below, I do not consider there is any utility in granting the adjournment. It is for this reason that I also do not consider that Syed assists the applicant. In Syed, whilst finding that many of the considerations weighed against the granting of an adjournment, at paragraph [11] Ladhams J said that she considered it in the interests of the administration of justice to grant the adjournment "largely because of a particular feature of this case which I consider warrants further consideration." That is to be distinguished from the Application currently before the Court, which for the reasons which follow, does not demonstrate any error by the Tribunal.

1. A "privative clause decision" as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal's decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76].
2. The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [175].

1. By Ground 1 the applicant submits that the Tribunal erred in its assessment of the GTE criterion and application of Direction 69. To this extent, Ground 1 is misconceived.
2. The only issue before the Tribunal was whether the applicant was enrolled in a course of study as required by cl 500.211(a) of the Regulations. The Tribunal considered the applicant's evidence. The applicant had not provided the Tribunal with a current COE either prior to the hearing or at the hearing. Paragraph [13] of the Tribunal Decision records that the applicant's own sworn evidence before the Tribunal was that he was not enrolled in a course of study. At the hearing in this Court, the applicant conceded that he was not enrolled in a course of study at the time of the Tribunal's decision and that this was his evidence to the Tribunal. Accordingly, whether the applicant was a genuine temporary entrant and satisfied the criteria in cl 500.212 was not relevant to the Tribunal's task, nor were the provisions of Direction 69. Having correctly determined that the applicant did not satisfy cl 500.211, the Tribunal did not, and was not required to, consider whether the applicant met the GTE criterion or refer to Direction 69.
3. Further, to the extent that the applicant submits that the Tribunal failed to accord him procedural fairness, this ground must fail.
4. Section 357A of the Act (as it was at the relevant time) was headed "Exhaustive statement of natural justice hearing rule" and provided, relevantly, as follows:

(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

...

(3) In applying this Division, the Tribunal must act in a way that is fair and just.

1. Accordingly, pursuant to s 357A(1) of the Act, Division 5- Part 5 of the Act (Division 5) is "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". As such, notions of common law procedural fairness do not apply in relation to the matters Division 5 deals with, although there can be no doubt that the Tribunal is required to apply the provisions of Division 5 in a fair and just way.
2. As the evidence that the applicant was not enrolled in a course of study and did not hold a COE at the time of the decision was provided by the applicant himself, as submitted by the Minister, the Tribunal was not required to put that information to the applicant for comment pursuant to s 359A of the Act (see s 359A(4)(b)).
3. Further, as also submitted by the Minister, although the issue before the Delegate was whether the applicant satisfied cl 500.212, the Tribunal plainly put the applicant on notice that an "issue arising" in relation to the review was whether he met the "enrolment requirements" for the grant of a student visa and he was not entitled to assume that the issues the Delegate considered dispositive were "the issues arising in relation to the decision under review": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 153; [2006] HCA 63 at [35] - [36] per Gleeson CJ, Kirby, Hayne and Callinan JJ. In addition, the applicant was afforded an opportunity to present arguments and give evidence in relation to the issue arising on the review at the Tribunal hearing. Having done so, the Tribunal complied with s 360 of the Act.
4. Ground 1 therefore discloses no jurisdictional error on the Tribunal's behalf.

1. At the hearing the applicant submitted that the reason he did not have a COE was that he had been rejected by several universities and wanted only to enrol in a course he genuinely wanted to study. He says he told this to the Tribunal and the Tribunal told him it would keep this in mind. He also said that he handed a number of documents to the Tribunal but the Tribunal did not consider them.
2. The matters do not disclose any jurisdictional error on the Tribunal's behalf.
3. Firstly, the reasons why the applicant was not enrolled in a registered course of study are not relevant. The requirement of cl 500.211(a) that an applicant be enrolled in an approved course of study is mandatory and, as such, the Tribunal had no discretion to waive that requirement or to take into account any circumstances which may have resulted in the applicant not being enrolled: _Thummala v Minister for Immigration, Citizenship and Multicultural Affair_s [2022] FedCFamC2G 828 at [57]. The Tribunal correctly determined that the applicant did not meet the requirements of cl 500.211(a) and no other considerations were relevant to that determination.
4. Secondly, there is no evidence before the Court that any documents were handed to the Tribunal at the hearing. The Tribunal Decision makes no reference to any documents provided by the applicant, nor are any such documents included in the Court Book before the Court. However, even if there were such documents, the applicant on his own evidence was not enrolled in a course of study. Having correctly determined therefore that the applicant did not satisfy cl 500.211, the Tribunal did not, and was not required to, consider any other matters. Accordingly, even if the Tribunal did receive documents from the applicant as he asserts, any failure to consider them cannot give rise to error on the Tribunal's behalf.

1. For the reasons set out above, the Application must be dismissed.
2. The Minister seeks that the applicant pay its costs in a fixed amount. I shall order that the applicant pay the Minister's costs in an amount to be fixed, if not agreed.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.