Rehman v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 542

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 for judicial review of a decision of the (then) Administrative Appeals Tribunal ("the Tribunal") dated 18 November 2020, affirming a decision of a delegate of the Minister for Home Affairs ("delegate") not to grant the applicant a Student (Temporary) (Class TU) visa ("the visa").
2. For the reasons set out below, the application must be dismissed.

1. The applicant is a citizen of Pakistan.
2. On 6 March 2019, the applicant lodged a visa application on the basis of his enrolment in a Bachelor of Business Information Systems, due to commence on 22 February 2017 and conclude on 24 May 2020.
3. On 2 May 2019, a delegate refused to grant the visa on the bass that the applicant had not demonstrated sufficient evidence of financial capacity as required by cl 500.214 of Schedule 2 to the _Migration Regulations 199_4 (Cth) ("the Regulations").
4. On 23 May 2019, the applicant applied to the Tribunal for a merits review of the delegate's decision (CB37-38).
5. On 30 October 2020, the Tribunal accessed information from the Provider Registration International Student Management System (PRISMS), which indicated his enrolment had been cancelled for non-payment of fees and non-commencement of studies.
6. On 2 November 2020, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (Cth) ("the Act"), inviting the applicant to provide information about enrolment in a course of study, in writing.
7. The applicant did not provide the information within the prescribed period, and no extension of time was requested until after the due date. In these circumstances, s 359C of the Act applies, and pursuant to s 360(3) of the Act, the applicant is not entitled to appear before the Tribunal.
8. The Tribunal determined to proceed to a decision without taking further steps to obtain further information from the applicant.

1. The application for judicial review was filed one day outside the 35-day time period prescribed under s 477(1) of the Act. The applicant requires an extension of time to seek judicial review.
2. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719, the following matters were held to be relevant as to whether an extension of time should be granted:

(a) the extent of the delay;

(b) the explanation for the delay;

(c) prejudice to the respondent due to the delay; and

(d) the merits of the proposed application.

1. To the above, the Court would add that the longer the delay in lodging an application, the more persuasive the reason for the delay must be.
2. The delay is one day and can be regarded as minor. This favours an extension being granted.
3. The applicant's explanation for the delay is that he had calculated the review period to be from the date he received the Tribunal decision, that he commenced preparing the judicial review application on 22 December 2020 but had difficulties finding a witness to his affidavit due to COVID-19, and he "made necessary efforts" to lodge the application in time.
4. The first respondent submitted that the one-day delay is minor, however, the applicant's explanation for the delay is altogether unsatisfactory. This is in circumstances where it was the applicant's responsibility to ascertain his review rights and any applicable time limits: SZLIH v Minister for Immigration and Citizenship [2009] FCA 108. The applicant was able to do this by having reference to the fact sheets on review rights, which accompany the Tribunal decision. It is noted that, although the applicant claims to have had difficulty obtaining a witness because of COVID-19, his Affidavit was filed on 24 December 2020 but was witnessed on 23 December 2020, within the prescribed time frame.
5. Noting the very small delay, the Court accepts the explanation offered by the applicant. This favours an extension being granted.
6. As to any prejudice caused to the respondent during this delay, the first respondent accepted that there was no specific prejudice other than the public interest in the finality of administrative decisions. As no real prejudice will flow to the Minister from an extension of time being granted, this factor favours the extension of time being granted.
7. The final matter for consideration relates to the merits of the proposed application. These should be considered at an impressionistic level. If there is no merit in the proposed grounds of appeal, then granting an extension of time would be pointless.
8. The Court noted the grounds of judicial review. The Court was of the view that they were worthy of substantive consideration, although not strong. In these circumstances, noting all other factors favour an extension of time being granted, it is in the interests of justice that the time for the lodgement of the application be extended to the date the application was filed in the Court.
9. The Court will now consider the grounds of judicial review on their merits.

1. The Tribunal decision is relatively short, spanning a total of twelve (12) paragraphs and three (3) pages.
2. The Tribunal determined that the issue for determination was whether the applicant was enrolled in an approved course of study.
3. The Tribunal instructed itself as to the requirements set out in Part 500 of Schedule 2 to the Regulations, with the primary criteria being relevantly cl 500.211 of the Regulations.
4. Despite the applicant being invited to comment or respond to information that indicated he was not enrolled to study, he did not reply until after the prescribed period for response.
5. Therefore, at the time of the Tribunal's decision, the Tribunal was not satisfied that the applicant was enrolled in a course of study and cl 500.211 of the Regulations was not met.

1. Under the heading 'Grounds of Application' in the applicant's Originating Application, the applicant submitted the following:
   1. I lodged my student visa application on 6 March 2019 with Department of Home Affairs.
   2. DHA refused my visa application claiming that I did not provide financial documents in support of my student visa application.
   3. In my student visa application I mentioned that I have access to financials as my father is supporting me financially for my studies in Australia. I also mentioned in the application form that I can provide the evidence if the departments asks me provide documents as evidence of funds.
   4. DHA did not ask me for any further information and my visa application was refused by Department of Home Affairs on 2 May 2019.
   5. After receiving the decision from DHA I applied for a review of the decision with Administrative Appeals Tribunal.
   6. AAT requested further information regarding my enrolment on 2 Nov 2020 but as the enrolment documents were to be provided by the education provider it took sometime to obtained those documents for which I requested AAT to provide me some additional time but AAT made a decision on my application with the information at hand and did not provide the opportunity to submit the supporting documents.
   7. In addition to that AAT did not consider my request to provide addition time and took away my right to appear before AAT to provide verbal evidence during a hearing.
   8. Both DHA and AAT did not provide me a fair opportunity to submit my supporting documents for my visa and review application. First DHA made a decision on the application without asking for evidence of financial support and then AAT did not give me the opportunity appear before the Tribunal and give the evidence.
   9. I believe that I have not been given a fair change to provide the required documentation and want to get a fair chance to submit all the documentation in support of my visa application.
   10. I will provide any required documentation as evidence that I am a genuine student and have the moral and financial support of my parents for my studies in Australia.
   11. Request the Court to help me get a fair and just opportunity to present my case and circumstances.

1. The applicant appeared before the Court unrepresented. He was assisted by an interpreter. At the commencement of the hearing, he advised the Court that he did not require the respondent's written submissions to be interpreted to him.
2. The Court confirmed that the applicant was in possession of a copy of the relevant Court book. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing, should he so wish to.
3. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
4. On 21 March 2025, the Court accepted for filing a two-page document from the applicant entitled Submissions. In it, the applicant confirmed he had completed a Bachelor of Information Systems from the Pacific College in Sydney in August 2024. He also stated he had the financial capacity to support himself in further study. Another document contained his record of study. The Court notes, for what it is worth, that the applicant was granted Recognition of Prior Learning (RPL) for all but three subjects in the Bachelor's course. Of 18 subjects, he was granted RPL for 15.
5. The Court advised the applicant that it was unable to accept any new information that post-dated the Tribunal decision, as it was conducting judicial review, which focused solely on whether the Tribunal decision was the subject of jurisdictional error.
6. The applicant told the Court he would like to remain in Australia and complete a Master's degree in the same area of study.
7. The applicant told the Court he was unable to comply with the 14-day time period set by the Tribunal for the provision of further information due to a conflux of issues, including COVID-19 restrictions. The applicant was also seeking a Conformation of Enrolment from his previous education provider, the Asia Pacific International College. The applicant was unable to do so in time and sought an extension of time to provide the information sought, however, he agreed this was submitted after the specified 14-day time limit set by the Tribunal.

1. As to proposed grounds one to five, the first respondent submits that these grounds do not assert any error in the Tribunal's decision. To the extent that these grounds, together with proposed ground eight, seek to challenge the delegate's decision, the Court does not have jurisdiction to review the delegate's decision in line with s 476(2)(a) and 476(4) of the Act. Any potential errors identified in the delegate's decision were not relevant.
2. By grounds six to nine, the applicant complains that the Tribunal did not afford him a fair opportunity to submit his supporting documents and denied him his right to a hearing. It is submitted that grounds six to nine proceed on a misunderstanding of the application of the law, as it stood at the time, to the circumstances of the case.
3. The s 359A of the Act invitation complied with legislative requirements for the following reasons:

(a) Specified that the comment or response requested was to be given in writing (CB48): s 359B(1) of the Act.

(b) Was given to the applicant by one of the methods specified in s 379A, namely by email to the email address provided to the Tribunal in connection with the review (CB47): s 359A(2) of the Act.

(c) Gave clear particulars of the information that the Tribunal considered could be the reason or part of the reason for affirming the decision under review (CB48): s 359A(1)(a) of the Act.

(d) Specified the period of time in which the applicant was required to provide the comment or response, being the prescribed 14 days from when it was received (CB48): s 359B(2) of the Act and reg 4.17(4) of the Regulations.

1. The invitation made clear that a response or an extension of time must be received by 16 November 2020. It specified that if there was no comment or response provided by that time, the Tribunal may continue to a decision without taking any further action to obtain the applicant's views on the information requested and the applicant would lose any entitlement to a hearing.
2. It is agreed that the applicant received the invitation. However, the applicant only responded to the Tribunal on 17 November 2020, requesting additional time whilst he awaited evidence from his college.
3. As the applicant did not respond or seek an extension of time within the time timeframe, the Tribunal's discretion was enlivened (s 359C of the Act). The first respondent submits that the Tribunal's exercise of this discretion was appropriate in circumstances where the applicant did not respond within the prescribed time frame and the response did not include information but only a request for extra time without providing a clear purpose of the requested extension. The Tribunal also had the applicant's PRISMS records showing that he was not enrolled in a registered course of study.
4. In these circumstances, by way of s 360(2)(c) of the Act, the Tribunal was discharged from its obligation to invite the applicant to a hearing under s 360(1) of the Act. The applicant lost the entitlement to appear before the Tribunal, and the Tribunal did not have the power to invite the applicant to appear before it: s 363A of the Act; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413. The applicant failed to comment or respond to the s 359A of the Act invitation, and the provision in s 359C, 360(3) and 363A of the Act applied, resulting in the applicant not being invited to attend a hearing.
5. It was appropriate for the Tribunal to proceed to a decision without affording the applicant an opportunity to comment or respond to information.
6. Proposed grounds ten and eleven do not give rise to or assert a jurisdictional error. They invite the Court to engage in impermissible merits review. Insofar as the applicant states that he will provide the required documentation to show that he is a genuine student and calls upon the Court to give him a fair and just opportunity, the first respondent objects to it being received by the Court on the basis of relevance.

1. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a Court conducting judicial review was described in this manner:

... An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. Grounds one to five of the application for judicial review merely set out the procedural history of the matter and are not proper grounds of review. To the extent that they take issue with the delegate's decision, the Court has no jurisdiction to review the delegate's decision. They have no merit.

1. Grounds six to nine assert that the Tribunal did not afford the applicant a fair hearing. Having reviewed the documents contained within the Court Book, the Court is satisfied that the invitation to provide information sent to the applicant, pursuant to s 359A of the Act, met all relevant legislative requirements. It specified the response that was required, was provided to the applicant by one of the specified methods, gave a clear outline that the information could be considered as a reason for affirming the decision under review, and finally, specified the period of time that the applicant was required to provide the comments or response to, being the prescribed 14 days from when it was received pursuant to s 359B92 of the Act, and reg 4.17(4) of the Regulations.
2. It is not disputed that the applicant did not provide the information requested within the specified timeframe. Further, although the applicant did put in a late application, it did not specify what further information he would be providing and the timeframe within which the information would be provided. The Court notes, at that point of time, the Tribunal had evidence before it by way of a PRISMS printout that showed that the applicant was not enrolled at that time in a registered course of study.
3. In those circumstances, the Court is satisfied that the Tribunal was entitled to proceed in accordance with s 359C(2) and s 360(2) of the Act to discharge the Tribunal from its obligation to invite the applicant to a hearing. Further, pursuant to s 363A of the Act, the Tribunal did not have the power to invite the applicant to appear before it.
4. The Court is satisfied that it was within the legitimate decisional freedom of the Tribunal to determine the matter based on the information that was before it. Noting that the applicant was not at that time currently enrolled in a registered course of study as required by cl 500.211 of the Regulations, the Tribunal was entitled to find that the applicant did not meet the requirements under that clause and that in those circumstances, the decision not to grant the applicant a temporary study visa should be affirmed. The Court can detect no error in the approach adopted by the Tribunal. Accordingly, there is no merit in grounds 6 to 9.

1. Grounds ten and eleven respectively state that the applicant will provide documentation to show that he is a genuine student and requests the Court to give him a fair and just opportunity to present his case.
2. As was explained to the applicant, the Court is conducting judicial review, not merits review, and cannot grant the applicant a further study visa. Grounds 10 and 11 have no merit.

1. As none of the grounds of judicial review reveal any jurisdictional error, the application must be dismissed with costs.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.