Phuntsho v Minister for Immigration and Citizenship [2025] FedCFamC2G 2003

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. On 27 October 2025 the Chief Judge made orders by consent that the application for review of a Registrar's decision summarily dismissing the Applicant's substantive judicial review application be determined on the papers pursuant to Rule 17.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
2. In addition to the order that the matter be determined on the papers His Honour ordered that the transcript of the hearing on 28 November 2024 be marked as an exhibit and that there be liberty to apply to make further submissions within 14 days of receiving the transcript. No such application has been made.
3. For the purpose of making this decision on the papers I have considered:

(a) The Application filed 29 August 2019;

(b) Affidavit of the Applicant sworn 29 August 2019 and the annexures thereto;

(c) The Application for Review filed 4 November 2024;

(d) The Affidavit of the Applicant filed 4 November 2024;

(e) The Amended Response filed 5 September 2024;

(f) The Outlines of Submissions of the First Respondent filed 4 October 2024 and 26 November 2024;

(g) The Court Book filed 24 June 2020; and

(h) The transcript of the hearing before Judge Kirton of 28 November 2024.

1. Procedural orders were made by the Court on 19 September 2024, requiring the Applicant to file and serve an amended application, written submissions, and any affidavit evidence by 18 October 2025. Further orders were made on 13 November 2024, requiring the Applicant to file and serve any written submissions by 19 November 2024. No material was filed by the Applicant in accordance with the procedural orders.

1. The Applicant is a citizen of Bhutan. The Applicant entered Australia on 15 October 2013 as a student dependant visa holder. He applied for and was granted a student visa in July 2015. On 25 August 2017, the Applicant applied for a second student visa, a Student (Temporary) (class TU) Student (sub class 500) visa (the Visa).
2. To be granted the Visa, the Applicant was required to satisfy primary criteria in Schedule 2 clause 500.2 of the Migration Regulations 1994 (Cth) (Regulations) at the time of the decision. Clauses 500.211 and 500.212 of the Regulations relevantly provided:

(a) the applicant is enrolled in a course of study

...

500.212 The applicant is a genuine applicant for entry and stay as a student because:

(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i) the applicant's circumstances; and

(ii) the applicant's immigration history; and

(iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) any other relevant matter; and

(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and

1. At the time of making the Visa Application, the Applicant provided the Delegate with a confirmation of enrolment in a registered course, being a Diploma of Leadership and Management and Advanced Diploma of Business. The Delegate refused the Visa application on 20 October 2017 because the Delegate was not satisfied that the Applicant intended to stay temporarily in Australia and that the criterion for the grant of the Visa were not met.
2. The Applicant lodged an application for review with the Tribunal on 4 November 2017.
3. On 9 May 2019 the Tribunal sent the Applicant's representative an invitation to provide information. In that correspondence the Tribunal advised the Applicant of the requirements of the Visa namely: to be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student. The Tribunal also annexed a copy of Ministerial Direction No 69 "Assessing the genuine temporary entrant criteria for student visa and Student Guardian visa applications". The Tribunal requested that the Applicant complete a student visa information form by 23 May 2019.
4. The Applicant provided the Tribunal with a completed student visa information form on 21 May 2019. In that form, the Applicant, among other things, consented to the Tribunal deciding the review application without a hearing and declared that he did not have a current confirmation of enrolment in a registered course of study.
5. On 14 August 2019, the Tribunal affirmed the Delegate's Decision. The Applicant was notified of the Tribunal's Decision on 24 August 2019.
6. In its reasons the Tribunal observed that 20 months had elapsed since the making of the Delegate's Decision. Due to the effluxion of time the Tribunal considered that it would be beneficial for the Applicant to provide updated and further information hence the request that the Applicant complete a student visa information form. The Tribunal considered that the Applicant had a fair opportunity to provide information relevant to the Visa application and did not elect to adjourn the review. The Tribunal proceeded to make its decision on the information before it.
7. The Tribunal identified that for the Applicant to be granted the Visa the Applicant must satisfy the primary criteria pursuant to clause 500.211 - 500.218 of the Regulations. Relevantly, the Tribunal identified that clause 500.211(a) requires that the Applicant be enrolled in a registered course of study at the time the Tribunal makes its decision.
8. It was clear on the evidence before the Tribunal, namely the completed student visa information form, that the Applicant declared that he was not currently enrolled in a registered course of study. The Tribunal noted that the student visa information form put the Applicant on notice that not "being enrolled in a registered course of study may be a reason or part of a reason for the Tribunal affirming the decision under review even if it is not the same criteria or issue considered by the decision maker."
9. The Tribunal identified that the determinative issue in the Applicant's case had changed from the issue before the Delegate. On the Applicant's own evidence he was not currently enrolled in a registered course of study. The Tribunal considered that there was adequate opportunity to obtain evidence of current confirmation of enrolment. The Tribunal considered that the determinative issue before it was whether the Applicant meets the primary criteria under clause 500.211 of the Regulations.
10. The Tribunal found that the Applicant did not meet the criteria in clause 500.211(a) of the Regulations as a current certificate of enrolment in a registered course had not been provided by the Applicant and on his own admission he was not currently enrolled in a registered course of study. In these circumstances, the Tribunal determined that there was no utility in considering the genuine temporary entrant criteria in clause 500.212 of the Regulations. The Tribunal affirmed the decision of the Delegate.
11. The Applicant sought judicial review of the Tribunal's Decision. The application to this Court was filed on 29 August 2019, within 35 days of the date of the Tribunal's Decision as prescribed by s 477 of the Migration Act 1958 (Cth) (the Application).
12. On 5 September 2024 the First Respondent filed an Amended Response seeking summary dismissal of the Application pursuant to Rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (GFL Rules) and s. 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) on the basis that the Applicant had no reasonable prospects of successfully prosecuting the proceedings.
13. On 29 October 2024, a Judicial Registrar of this Court summarily dismissed the Application as the Applicant had no reasonable prospect of successfully prosecuting the Application and ordered that the Applicant pay the First Respondent's costs.
14. On 4 November 2024, the Applicant filed an Application for Review of the Registrar's decision (Review Application).
15. The Review Application was listed before and heard by Judge Kirton of this Court on 28 November 2024. The Applicant appeared as a litigant in person and a Solicitor appeared for the First Respondent. The procedure for the hearing was explained to the Applicant by the judge.

256 Review of power exercised by delegate

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 but rather a hearing de novo. This means that the Applicant does not have to "demonstrate any material error of fact, or principle, in the order under review" and the Court considers the matter afresh: Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39]. The task of the Court when considering a review application was described by Deputy Chief Justice McClelland in Newman & Tate [2020] FamCA 1114 at [12] as "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; 71 NSWLR 61 at [43].

1. 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. EWT20 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1108.
2. The question before the Court is whether any of the grounds in the Initiating Application are 'arguable', 'reasonably arguable', 'sufficiently arguable', or have 'reasonable prospects of success': MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]. In undertaking that assessment, the Court is to undertake an impressionistic examination of the grounds of review: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 at [68]. A closer examination of the merits is appropriate in some cases: see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 96 ALJR 819 at [18].
3. The party seeking summary dismissal has the onus of proving that the applicant has no reasonable prospects of success. Given orders are made at an early stage of the proceedings, the discretionary power to summarily dismiss an application must be exercised with caution. In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, Gaudron, McHugh, Gummow and Hayne JJ commented as follows at [57]:

"[...] Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."

(Citations omitted.)

1. 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].
2. In the Application for Review the Applicant sought a review of the orders of the Registrar of 29 October 2024 summarily dismissing the Application. The relief sought by the Applicant was expressed in the following terms:

Orders sought

1. That the Order made by Registrar Foster on 29 October 2024 dismissing the applicant's application for judicial review be set aside.

2. That the matter be referred for a substantive hearing before a judge of the Federal Circuit and Family Court of Australia (Division 2).

3. That the requirement for the applicant to pay the First Respondent's costs in the amount of $4,189.38 be set aside or stayed pending the outcome of the substantive hearing.

4. That the applicant be granted any further orders the Court deems appropriate in the interests of justice.

(verbatim)

1. In addition to the relief sought in the Application for Review, the Applicant in his affidavit filed on 4 November 2024 in support of the Application for Review stated that he sought relief in the following terms:

I respectfully request that the decision of Registrar Foster to dismiss my application be reviewed by the Federal Court, allowing me the opportunity to present my case and demonstrate the errors I believe were made in the handling of my subclass 500 visa application.

1. Rule 21.02 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. The Registrar's Orders were made on 29 October 2024. The Application for Review was filed on 4 November 2024 within the time prescribed by rule 21.02 of the GFL Rules.

1. At the review hearing the Applicant appeared as a litigant in person. The Court explained the nature of the proceeding before it to the Applicant namely that it was a hearing de novo.
2. The First Respondent, who was represented by a solicitor, pressed its summary dismissal application.
3. The grounds of review in the Application (Grounds of Review) were:

1. The Tribunal made a jurisdictional error in the finding that The Applicant did not satisfy the requirements of cl.500.211 of Scheule 2 to the Migration Regulations 1994 (the Regulations).

1. The Tribunal failed to consider that while holding a student visa in the past, the applicant always holding CoE and never breached any condition of student visa. 2. The Tribunal also failed to give a chance to obtain a confirmation of enrolment assumption. 3. The Tribunal did not considered difficulty to acquire a confirmation of enrolment from good college/university while holding BVA.
2. The Minister submitted that the Application could not succeed as on the Applicant's own evidence before the Tribunal, he was not enrolled in a registered course of study as required by cl 500.211(a) and in these circumstances the Tribunal made the only decision open to it.
3. In dealing with the particulars to the Applicant's Ground of Review, the Minister made submissions with respect to:

(a) Particular (a) that the past compliance with visa conditions was not a relevant consideration for the Tribunal;

(b) Particular (b) that the onus was on the Applicant to satisfy the criteria for the grant of the Visa and not on the Tribunal to facilitate the circumstances and that in any event, the Tribunal had considered that the Applicant had adequate opportunity to obtain the evidence required; and

(c) Particular (c) that the difficulty in acquiring a COE from a good college or university while holding a BVA was not a relevant consideration for the Tribunal. Further this argument was not raised in the Tribunal to explain or excuse why he was not enrolled in a registered course of study.

1. In summary, the First Respondent submitted that the Tribunal's Decision was free from error and consequently ought to be summarily dismissed.
2. The Applicant did not file submissions but read a statement to the Court:

My name is Tenzin Phuntsho, and I am the applicant in this matter. I am here today to request a review of the decision by Register Foster to summary dismiss my application for the jury review of the refusal of my subclass 500 student visa. I believe that I believe here have been error in process and decision made by the first correspondent, the Ministry of Immigration, Citizenship and Multicultural Affairs, as well as the second correspondent by the Administrative Appeals Tribunal. My application for the subclass 500 visa was refused in 2017 and subsequent appeals to the ATT in 2019 were also unsuccessful.

The Tribunal fails to properly consider my continuous complication with the visa condition during my previous studies and my ability to provide confirmation of enrolment, COE, disperse the challenges of holding a Bridging Visa A. In conclusion for my statement, your Honour, I respectfully request the Court to review this matter and grant me the opportunity to present my case fully. I believe the decisions made to this point were unjust, and I am seeking the court's assistance to clarify this situation. Thank you for your time and consideration.

1. The Court has considered the submissions of the Applicant and the First Respondent. The submissions of the First Respondent must be accepted. It was a binary decision whether the Applicant was enrolled in a registered course of study. On the Applicant's own evidence before the Tribunal, he was not enrolled nor did he produce a certificate of current enrolment. The mandatory requirement in Schedule 2, cl 500. 211(a) of the Migration Regulations was not met by the Applicant and as such the Tribunal was not required to consider whether any other visa criteria was or was not met: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 605 at [28] citing Bodige v Minister for Immigration & Anor [2018] FCCA 1841 at [24].
2. The Applicant has no reasonable prospect of success in establishing a jurisdictional error on the part of the Tribunal.

1. Having determined that the Application has no reasonable prospect of success, the First Respondent's application for summary dismissal of the Application is granted. I otherwise dismiss the Application for Review and affirm the Registrars orders of 29 October 2024
2. The First Respondent sought costs fixed the amount of $1,100.00 being lower than 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 $1,100.00 with respect to the Application for Review. For the Avoidance of doubt the Applicant is also to pay the 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 forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.