Ahmed v Minister for Immigration and Citizenship - Leave to Appeal Refused

Original Word Document (87.6 KB) Federal Court of Australia

Ahmed v Minister for Immigration and Citizenship [2026] FCA 354

| Appeal from: | Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 1203 |
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| File number(s): | NSD 42 of 2024 |
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| Judgment of: | LEE J |
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| Date of judgment: | 25 March 2026 |
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| Catchwords: | MIGRATION – leave to appeal – student visa refusal – mandatory enrolment criterion – refusal to adjourn hearing – no jurisdictional error – adverse information properly raised under ss 359A, 359AA of the Migration Act 1958 (Cth) – no legal unreasonableness – leave to appeal refused – costs fixed |
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| Legislation: | Federal Court of Australia Act 1976 (Cth) s 24(1A)

Migration Act 1958 (Cth) ss 259AA , 359A, 363(1)(b)

Migration Regulations 1994 (Cth) Sch 2, cll 500.211, 500.212

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13(a) |
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| Cases cited: | Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 1203

EBW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 341

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Taylor v Minister for Immigration and Multicultural Affairs [2025] FCA 517 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 20 |
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| Date of hearing: | 25 March 2026 |
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| Solicitor for the applicant: | The applicant appeared in person |
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| Solicitor for the first respondent: | Mr Sheedy of Sparke Helmore Lawyers |
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| Solicitor for the second respondent: | The second respondent entered a submitting notice, save as to costs |
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ORDERS

| | | NSD 42 of 2024 |
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| BETWEEN: | SOGIR AHMED

Applicant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | LEE J |
| DATE OF ORDER: | 25 MARCH 2026 |
THE COURT ORDERS THAT:

1. The name of the first respondent be changed to Minister for Immigration and Citizenship.

2. The proceeding be dismissed with costs, fixed in the amount of $4,500.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INtroduction

1 The applicant seeks leave to appeal from orders made on 15 December 2023 upon delivery of the primary judgment Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 1203 (PJ).

2 The primary judge dismissed an application for review of a Registrar’s summary dismissal of the applicant’s judicial review application. That underlying application sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 16 November 2021, which affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa.

B    BACKGROUND

3 This matter has a very long history.

4 The applicant is a citizen of Bangladesh who arrived in Australia over 15 years ago as the holder of a student visa. In March 2019, he applied for a further Subclass 500 visa, which the Minister refused on the basis that the applicant did not satisfy the “genuine temporary entrant” criterion under cl 500.212 of Sch 2 of the Migrati on Regulations 1 994 (Cth) (Regulations).

5 In September 2019, the applicant applied to the Tribunal for review of the Minister’s decision. On 18 October 2021, the Tribunal invited the applicant to a hearing by telephone scheduled for 11 November 2021 and requested that he provide a current Confirmation of Enrolment to show he was currently enrolled in a registered course of study, as required by cl 500.211 of the Regulations.

6 On 20 October 2021, the applicant requested an adjournment on medical grounds based upon difficulties with his eyesight. The Tribunal refused, finding the medical evidence did not establish he was unfit to participate meaningfully by telephone.

7 At the hearing, the applicant admitted he was not enrolled in a course of study. Pursuant to ss 359A and 359AA of the Migration Act 1958 (Cth) (Act), the Tribunal raised the adverse information from the Provider Registration and International Student Management System (PRISMS) records indicating his non-enrolment and afforded him until close of business on 12 November 2021 to comment or respond.

8 The applicant provided no further material, and on 15 November 2021, the Tribunal affirmed the Minister’s decision on the basis that it was not satisfied the applicant was enrolled in a course of study at the time of decision, and thus, cl 500.211 was not met.

9 In December 2021, the applicant filed an application for judicial review of the Tribunal’s decision. It was then two years later, on 15 November 2023, that this application was summarily dismissed by a Registrar due to no reasonable prospects of success, pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

B.1    The Primary Judge’s Decision

10 The primary judge found that the Tribunal’s refusal to adjourn the hearing was exercised reasonably. His Honour also found that the applicant’s complaint regarding the Tribunal’s failure to assess his travel history under the genuine temporary entrant criterion was misconceived, because the Tribunal’s dispositive finding was his failure to meet the mandatory enrolment criterion under cl 500.211 of the Regulations. Finally, the primary judge rejected the claim that the Tribunal breached either ss 359A or 359AA of the Act, finding that the Tribunal properly put the adverse information to the applicant at the hearing and provided him with a reasonable period to respond.

11 The primary judge’s decision was interlocutory: see EBW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 341 (at [31] per Feutrill J). Therefore, leave to appeal is required and leave will only be granted if the decision is attended by sufficient doubt to warrant reconsideration and substantial injustice would result if leave was refused (EBW21 at [35] per Feutrill J).

C    CONSIDERATION OF LEAVE TO APPEAL

12 The draft notice of appeal relies on four grounds, none of which establish that the primary judge’s decision is attended by any, let alone sufficient doubt.

13 First, Ground One (not labelled) merely asserts jurisdictional error generally, identifying no specific reviewable error.

14 Secondly, Ground Two (labelled Ground One) alleges the Tribunal’s refusal to adjourn was unreasonable. Although the ground states that the “[T]ribunal decision is unreasonable”, the particulars given to the ground note that it focuses on the refusal to adjourn. The refusal to adjourn was far from unreasonable as the medical evidence did not establish an inability to participate in the telephone hearing and the applicant later submitted a form confirming his ability to attend. The primary judge’s finding the Tribunal’s discretion not to adjourn the hearing was, in fact, reasonable.

15 If what is being sought by Ground Two is a broader allegation of legal unreasonableness concerning the decision made following the refusal to adjourn, that is also misconceived. As was stated in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (at 367 [76] per Hayne, Kiefel, and Bell JJ) “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”: see also Taylor v Minister for Immigration and Multicultural Affairs [2025] FCA 517 (at [62]–[63] Stellios J).

16 There was nothing about the Tribunal’s decision-making processes which could be described in this way, and, indeed, as the primary judge correctly found, the way in which the Tribunal handled the matter was not attended by legal error. It is hardly surprising in these circumstances that the matter was dealt with summarily by the Registrar. The primary judge’s finding that the Tribunal’s discretion not to adjourn the hearing, under s 363(1)(b) of the Act (as it then was), was reasonable.

17 Thirdly, Ground Three (labelled Ground Two) contends the Tribunal failed to consider the applicant’s travel history when assessing the genuine temporary entrant criterion. This is misconceived. The dispositive issue was the mandatory enrolment criterion, pursuant to cl 500.211 of Sch 2 of the Regulations, rendering consideration of the genuine temporary entrant criterion, under cl 500.212 of Sch 2 of the Regulations, unnecessary.

18 Fourthly, Ground Four (labelled Ground Three) alleges non-compliance with s 359AA and/or 359A of the Act. The primary judge correctly observed the Tribunal was not required to provide adverse PRISMS information prior to the hearing. The Tribunal properly put the information to the applicant during the hearing and granted him a reasonable period to respond post-hearing, thereby complying with s 359AA(1)(b)(iii) of the Act.

D CONCLUSION

19 In these circumstances, the application for leave to appeal must be dismissed.

20 The amount of $4,500 sought by the Minister for costs is, in my view, reasonable and proportionate having regard to the nature of the proceeding and the circumstances in which it was brought. Costs should be fixed in this amount.

| I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. |
Associate:

Dated: 27 March 2026

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