Student Visa Appeal Dismissed - Procedural Fairness Under Migration Act

Original Word Document (95 KB) Federal Court of Australia

Abidi v Minister for Immigration and Citizenship [2026] FCA 374

| Appeal from: | Abidi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 330 | |
| | | |
| File number(s): | VID 412 of 2024 | |
| | | |
| Judgment of: | HILL J | |
| | | |
| Date of judgment: | 1 April 2026 | |
| | | |
| Catchwords: | MIGRATION – application for a student visa – new dispositive issue before the Administrative Appeals Tribunal of whether the First Appellant met the enrolment requirement for the visa – Tribunal notified the First Appellant of this issue at the hearing – Tribunal refused to grant an adjournment to allow the First Appellant to obtain a confirmation of enrolment – whether a breach of procedural fairness – whether a breach of Migration Act 1958 (Cth) s 359A – adverse information was given to First Appellant in accordance with s 359AA – refusal to grant an adjournment was not legally unreasonable – appeal dismissed | |
| | | |
| Legislation: | Federal Court of Australia Act 1976 (Cth) s 43(3)(d)

Migration Act 1958 (Cth) ss 357A, 359AA, 359A, 360, 363

Federal Court Rules 2011 (Cth) r 40.02(b), Sch 3 items 15.1, 15.2 | |
| | | |
| Cases cited: | BAX16 v Minister for Immigration and Border Protection [2018] FCA 181

Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288

BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 531

COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112

DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79

Minister for Immigration and Border Protection v Pandey [2014] FCA 640: (2014) 143 ALD 640

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

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46; (2021) 284 FCR 62

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30

Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 102

Quadri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 246

Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2023] FCA 978

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Vedantam v Minister for Immigration and Multicultural Affairs [2025] FCA 179

Virk v Minister for Immigration and Citizenship [2025] FCA 630

VRRQ v Minister for Immigration and Citizenship [2026] FCA 77 | |
| | | |
| Division: | General Division | |
| | | |
| Registry: | Victoria | |
| | | |
| National Practice Area: | Administrative and Constitutional Law and Human Rights | |
| | | |
| Number of paragraphs: | 48 | |
| | | |
| Date of hearing: | 27 March 2026 | |
| | | |
| Counsel for the Appellants: | The Appellants appeared in person | |
| | | |
| Counsel for the First Respondent: | Ms M Baras-Miller | |
| | | |
| Solicitor for the First Respondent: | Australian Government Solicitor | |
| | | |
| Counsel for the Second Respondent: | The Second Respondent filed a submitting notice save as to costs | |
ORDERS

| | | VID 412 of 2024 |
| | | |
| BETWEEN: | SYED ASAD ABBAS ABIDI

First Appellant

SYEDA RIDA ZEHRA ABIDI

Second Appellant

SYEDA BAREEHA FATIMA ABIDI

Third Appellant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | HILL J |
| DATE OF ORDER: | 1 April 2026 |
THE COURT ORDERS THAT:

1. The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

2. The name of the Second Respondent is amended to “Administrative Review Tribunal”.

3. The appeal is dismissed.

4. The Appellants pay the First Respondent’s costs, fixed in the sum of $5,000.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1 This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA): Abidi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 330 (J). The primary judge dismissed an application for review of a decision of the former Administrative Appeals Tribunal, which affirmed a decision not to grant the Appellants student visas.

2 For the following reasons, the appeal is dismissed with costs.

background

3 Arrival in Australia (2007): The Appellants are citizens of Pakistan (J [2]). The First Appellant arrived in Australia on a student visa in October 2007. The Second Appellant is his wife (who joined him in Australia after they were married in June 2012), and the Third Appellant is their daughter (who was born in September 2014) (J [3], 5-(c)).

4 Application for further student visa (Nov 2016): On 18 November 2016, the First Appellant applied for a further student visa, stating that he was seeking to undertake a Diploma of Hospitality. The Second and Third Appellants were included in this application as his dependants. The First Appellant stated in this application that he had a Confirmation of Enrolment (COE) (J [4]).

5 Request for further information (Jan 2017): On 6 January 2017, the Department requested that the First Appellant provide further information about the “genuine temporary entrant” criterion, and his financial capacity. The First Appellant responded to that request on 3 February 2017 (J [7]).

6 Delegate refuses application (May 2017): On 1 May 2017, a delegate of the First Respondent (Minister) refused the First Appellant’s application for a student visa, because the delegate was not satisfied that the First Appellant was a genuine applicant for temporary entry and stay in Australia (J [8]). That conclusion meant that the Second and Third Appellants’ application was also refused (J [9]). On 21 May 2017, the Appellants applied to the Tribunal for merits review of the delegate’s decision.

7 Tribunal hearing invitation (2 Aug 2018): On 2 August 2018, the Tribunal invited the Appellants to attend a hearing. The hearing invitation requested that the Appellants “provide all documents you intend to rely on to establish that you meet the criteria for the visa”, and requested that the Appellants “provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:” (original emphasis)

1.     A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of a student visa.

2.     Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

3.     We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.

…

8 The First Appellant did not provide the Tribunal with a current COE or other document (J [12]-[13]).

9 Tribunal affirms decision at hearing (20 Aug 2018): At the hearing on 20 August 2018, the Tribunal issued an oral decision, affirming the delegate’s decision to refuse to grant the Appellants student visas (J [15]). A written copy of these reasons was provided to the Appellants on 27 November 2018 (J [16]).

The Tribunal informed the Appellants that the dispositive issue before the Tribunal was whether, at the time of the decision, the First Appellant was enrolled in a course of study (Tribunal reasons (AAT) [7]-[12]).

The Tribunal stated that, after the First Appellant was provided with his PRISMS record, he confirmed that he had not been enrolled in a course of study since September 2017, and did not currently hold a valid COE (AAT [14]-[19]).

The Tribunal rejected an application by the First Appellant for an adjournment so that he could obtain a further COE. The Tribunal stated that the First Appellant had not been enrolled in a course since September 2017, and had been notified of the need to provide the Tribunal with a current COE in the Tribunal’s letter dated 2 August 2018 (AAT [20]-[22]).

The Tribunal found that there was no evidence before it that the First Appellant was enrolled in or had a current offer of enrolment in any course of study, and therefore he did not meet the criteria for a student visa (AAT [23]). The Tribunal therefore affirmed the delegate’s decision (AAT [25]-[26]).

10 Application for judicial review (Sep 2018): On 11 September 2018, the Appellants applied to the FCFCOA for judicial review of the Tribunal’s decision (J [25]). That application raised the following grounds of review (J [27]):

1.     Tribunal does not consider case on merit considering direction 69.

2.     Did not consider all factors mention in direction 69 under section 499 of Migration Act (Assessing the genuine temporary entrant criterion for student visa).

3.     Delegate consider the clause 500.212 as the reason of decision which was not fairly judge in my case. Even I had provided all the evidences against the criterion.

11 Primary judge dismisses review application (Apr 2024): The judicial review application was heard on 14 March 2024. The primary judge dismissed the application on 17 April 2024.

The dispositive issue before the Tribunal was whether the First Appellant had a current COE at the time of the Tribunal’s decision. In circumstances when he did not, the Tribunal could not grant him a student visa (J [37]).

The First Appellant was adequately put on notice by the Tribunal’s 2 August 2018 letter (the hearing invitation) that it was a requirement for the grant of a visa that he have a current COE at the time of the Tribunal’s decision (J [44]). At that time, the First Appellant had not been enrolled in a course of study for almost 12 months (J [45]). In those circumstances, the Tribunal’s decision to refuse to grant an adjournment to allow the First Appellant an opportunity to obtain a COE was not legally unreasonable (J [46]).

12 Appeal to this Court (May 2024): On 13 May 2024, the Appellants lodged a notice of appeal in this Court. That notice contains the following grounds of appeal:

1.     The Federal Circuit Court failed to find that the Administrative Appeals Tribunal fell in jurisdictional error in determining without a logical and probative basis that all the evidence upon which his claim was based was false.

2.     The Federal Circuit Court failed to find that the Administrative Appeals Tribunal fell in misapprehending the evidence and then use its erroneous findings about the evidence[.]

13 These grounds of appeal do not seem to relate to the Tribunal’s decision in this case at all; for example, the Tribunal did not find that the evidence of the First Appellant was “false”. There is no substance to these arguments.

14 Arguments in written submissions: However, a week before the hearing of the appeal (outside the timetabling orders made by the Court), the Appellants filed written submissions, arguing that the primary judge ought to have found (1) the Tribunal had failed to provide procedural fairness to the Appellants; and (2) the Tribunal had not complied with s 359A of the Migration Act 1958 (Cth). These submissions were accompanied by an affidavit of the First Appellant sworn on 20 March 2026 which sought to verify the factual claims made in the Appellants’ submissions. I received that affidavit as new evidence on the appeal, even though strictly this evidence should have been filed before the primary judge. The affidavit sets out the Appellants’ circumstances at the time of the Tribunal’s decision, and largely provides in evidentiary form what was put to the primary judge as a matter of submission (for example, that the First Appellant relied on advice from his migration agent about what issues would be considered at the Tribunal hearing). The Minister was granted permission to file further written submissions in response to the Appellants’ new material. The Minister does not contend that the receipt of the affidavit would cause the Minister prejudice.

15 When parties do not have lawyers, the Court will often consider any argument of substance that arises squarely on the materials before the Court: see DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9]-10; BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 531 at [35], 38. Similarly, if parties do not have lawyers, I would not insist on strict compliance with procedural requirements in how arguments are raised (such as the form of the notice of appeal), as long as the other side has sufficient time to respond. Here, these arguments were raised late and are not contained in the notice of appeal, but they raise a point of substance arising out of the reasons of the primary judge and the Minister has had sufficient opportunity to respond in writing.

consideration

Two comments for parties who do not have lawyers

16 The Appellants do not have lawyers acting for them in this appeal, as was the case before the primary judge. I start with two general comments.

17 Court asks only whether the Tribunal decision was lawful: First, the Court does not consider whether the Tribunal’s decision was correct on the merits. Instead, the Court only considers whether the Tribunal’s decision was lawfully made. The particular question is whether the Tribunal’s decision contains a serious legal error, called a “jurisdictional error”.

18 Duty to make sure Court’s processes are fair: Second, a judge has a duty to ensure that a hearing is fair to all parties (that is, both appellants and respondents). If a party does not have a lawyer (like the Appellants here), the judge may tell them about the practices and procedures of the Court, as relevant, to try to ensure a fair hearing. However, the judge does not give legal or tactical advice to a party who does not have a lawyer, because the judge must be impartial. See generally NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at 27, and Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at 21.

19 However, this duty is to ensure that the Court’s proce sse s are fair: the Court must apply the law as it is, and cannot simply make orders to achieve a result that the Court thinks is “fair”.

Appellants’ arguments: breach of procedural fairness/non-compliance with s 359A

20 As noted, the Appellants’ written submissions make two arguments: first, that the Tribunal did not afford the Appellants procedural fairness; and second, that the Tribunal did not comply with s 359A of the Act. It is convenient to consider these arguments together.

21 Appellants’ arguments – summary: On procedural fairness, the Appellants argue as follows:

(1) First, the Tribunal changed the determinative issue: the issue before the delegate was whether the First Appellant was a genuine temporary entrant, but the issue before the Tribunal was, at the time of the decision, the First Appellant was enrolled in a course of study.

(2) Second, it is said that there was no clear prior notice of this change in issue: the Appellants contend that the hearing notice did not clearly communicate that enrolment would be the determinative issue, or that failure to provide a COE would result in the visa being refused.

(3) Third, it is said that it was reasonable for the First Appellant to think that the Tribunal would first determine the genuine temporary entrant issue: that understanding was reinforced by advice from a migration agent; and it was reasonable for the Appellants not to incur the expense of enrolling if tuition fees would be lost if the Tribunal review were unsuccessful. The First Appellant’s affidavit sets out the facts relied on.

(4) Fourth, it is said that there was no meaningful opportunity to respond to this issue at the hearing: they were not prepared to address it, obtaining a COE could not be done immediately, and the refusal of an adjournment prevented the Appellants from responding in any meaningful way.

22 On the breach of s 359A, the Appellants contend that (a) the absence of a COE was information that was adverse to the Appellants and decisive of the outcome; (b) the Tribunal did not identify this issue prior to the hearing or explain its significance in a manner enabling a meaningful response; and (c) raising this issue at the hearing did not satisfy this statutory requirement.

23 At the hearing, the First Appellant handed up written reply submissions which emphasised that the Appellants were not given sufficient prior notice that the absence of a COE would be determinative of the Tribunal’s decision, and that, if the Appellants had been clearly informed before the hearing that enrolment was determinative, they would have taken steps to obtain a COE or sought more time to do so earlier than they did.

24 Leave required? The grounds of appeal are different from the grounds in the Appellants’ originating application before the primary judge (set out in [10 ] above); however, those grounds are similar to, and refine, the arguments put by the Appellants in oral submissions before her Honour (summarised in J [30]-[33]). That means the Appellants do not need leave (permission) to raise the arguments in their grounds of appeal: see, on raising new arguments on appeal, DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344 at [23]-24.

25 Procedural requirements and powers in Tribunal proceedings: The Appellants’ arguments concern the procedural requirements for a review hearing in the Tribunal. At the time of the Tribunal’s decision in August 2018, the relevant procedural requirements and powers were as follows.

26 Act s 359A (written notice): Section 359A provided for the Tribunal to give advance notice in writing of adverse information that might be relied on. By s 359A(1), the Tribunal was required to:

(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)     invite the applicant to comment on or respond to it.

27 However, this obligation did not apply to information (relevantly) that the applicant gave for the purpose of the application for review (s 359A(4)(b)). In addition, the Tribunal was not required to take the steps in s 359A(1) if the Tribunal gave “clear particulars of the information to the applicant, and invite[d] the applicant to comment on or respond to the information, under [s] 359AA” (s 359A(3)).

28 Act s 359AA (oral notification): Section 359AA provided for the Tribunal to give oral particulars of adverse information that might be relied on at the review hearing. Section 359AA(1) provided:

the Tribunal may orally give to the applicant at the hearing “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” (s 359AA(1)(a));

if the Tribunal did so, then by s 359AA(1)(b) the Tribunal must:

(i)     ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)     orally invite the applicant to comment on or respond to the information; and

(iii)     advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)     if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

29 Act s 360 (notify i ssues): Section 360(1) provided that (subject to the exceptions in s 360(2)), the Tribunal must invite a review applicant to appear before the Tribunal and give evidence and present arguments relating to the issues arising in relation to the decision under review. This obligation included informing a review applicant of any new dispositive issue that arose in the Tribunal proceedings: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.

30 Act s 357A (exhaustive statement): The provisions in Pt 5, Div 5 of the Act (which included ss 359A, 359AA and 360) were “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters [they] deal[t] with” (s 357A(1)). In applying Pt 5, Div 5, the Tribunal was required to “act in a way that is fair and just” (s 357A(3)).

31 Act s 363 (adjournment power): The Tribunal had power to adjourn a review from time to time (Act s 363(1)(b)). This adjournment power had to be exercised in accordance with the requirements of legal reasonableness: see generally Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

32 Issues in the appeal: The Appellants have two basic complaints: they were not notified sufficiently of the new dispositive issue in the Tribunal; and, to compound this first complaint, the Tribunal did not grant them an adjournment to allow them to respond meaningfully to this issue, by obtaining a COE.

33 Failure to give sufficient notice of the new dispositive issue? Although the Appellants’ arguments focus on procedural fairness and s 359A, their first complaint turns on whether the Tribunal complied with s 359AA of the Act in notifying the Appellants of the information underlying the COE issue.

Common law procedural fairness was excluded by s 357A in relation to the matters dealt with by ss 359A and 359AA; namely, the requirement to notify a person of adverse, credible and significant information (cf appeal ground 1).

Section 359A did not apply to information if the Tribunal had given clear particulars of that information under s 359AA (s 359A(3)) (cf appeal ground 2).

34 Preliminary issues: Before considering the application of s 359AA, I note two preliminary issues.

35 First, to the extent that the Appellants’ complaint is that the Tribunal did not give them fair notice of the new issue, that is really a question about compliance with previous s 360 of the Act, not s 359A. But the Tribunal was permitted by s 360 to raise any new dispositive issues at the hearing, so it could not be said that the Tribunal did not comply with s 360 in this case.

36 Second, the Minister contends that s 359A does not apply at all, because the information that the First Appellant did not have a current COE was given by him for the purpose of the application for review (cf s 359A(2)(b)). It is true that the First Appellant indicated that he did not have a COE in a “Student Visa – GTE Questionnaire” provided to the Tribunal on 20 August 2018. However, the Tribunal also provided the First Appellant with his PRISMS record (AAT [15]), which potentially is a separate source of information: cf Quadri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 246 at 27. Further, the Tribunal went through the process of providing information to the First Appellant in accordance with s 359AA (in its “section 359AA statement”). I consider next whether that process complied with s 359AA.

37 Information was notified in accordance with s 359AA: As noted, s 359AA(1)(b) contained four requirements. For the following reasons, I consider that any new information was notified in accordance with s 359AA. I note that the Court does not have a transcript of the Tribunal hearing, so the Court is relying on the Tribunal’s description in its reasons of what occurred at that hearing. The Appellants bear the onus of showing that there is a jurisdictional error.

The Tribunal’s reasons indicate that the Tribunal explained to the Appellants why the absence of a COE was relevant to the review, and the consequences of the First Appellant not having a COE (AAT [7]-[11]; s 359AA(1)(b)(i)).

The Tribunal invited the First Appellant to comment on that information (AAT [15], [18]; s 359AA(1)(b)(ii)).

The Tribunal offered additional time to consider the s 359AA statement, but the First Appellant did not seek additional time to comment on or respond to the information in the s 359AA notice (AAT [17]; s 359AA(1)(b)(iii)-(iv)).

38 The Appellant’s first complaint – that they were not sufficiently notified that the COE would be the dispositive issue – must therefore be rejected. The Minister submitted, and the Appellants agreed, that the Appellants’ request for an adjournment was not a request for more time to respond to the s 359AA information, but a request for more time generally under s 363.

39 Failure to adjourn? The Appellants’ second complaint is that the Tribunal’s decision not to adjourn the hearing, to enable the First Appellant to obtain a COE, was legally unreasonable. (The claimed error could also be analysed as a breach of procedural fairness, but the application of procedural fairness and legal unreasonableness to a failure to adjourn will lead to the same result in this case. That is because procedural fairness requires that a party be given a reasonable opportunity to present their case: see Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 40; Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 102 at 55.)

40 The Tribunal refused to grant an adjournment for two reasons: first, the First Appellant had not applied for enrolment in an approved course since September 2017 (more than 11 months); and second, he had been notified of the need to provide the Tribunal with a current COE in the Tribunal’s hearing invitation dated 2 August 2018 (AAT [20]-[22]). The Appellants challenge both of these reasons.

41 First, as noted, the Appellants contend that they had good reasons for not meeting the statutory criteria at the time of the Tribunal’s decision: see [21 ] (3) above. That may be doubted: these matters might justify a short period without study, but at that stage, the First Appellant had not applied to enrol in a course for more than 11 months. In any event, the only issue for the Tribunal was whether the First Appellant met all the criteria for a student visa or not. If he did not meet the criteria, the Tribunal was required to refuse to grant a visa (see s 65(1) of the Act). The reasons that the First Appellant did not meet the statutory criteria were not relevant to this assessment: see Quadri at [25]. And it was the Appellants’ responsibility to ensure that they met the criteria for the visa.

42 Second, the Appellants contend that the Tribunal’s hearing invitation did not inform them clearly that a lack of a COE would result in the review application being dismissed. The relevant part of the hearing invitation stated that a current COE “is required for the grant of a student visa”: see [7 ] above. For the following reasons, I agree that the Tribunal’s hearing letter sufficiently notified the Appellants that it was necessary for the First Appellant to have a current COE (J [44]).

I can accept that the significance of this statement might not have been apparent to the Appellants, who (it appears from their oral submissions before me) did not realise that the Tribunal would exercise the power to grant or not grant a visa. However, the hearing invitation did at least identify the need for a COE as an issue in the Tribunal proceedings (even if the full significance of that issue did not become apparent to the Appellants until the hearing).

Putting aside issues of legal incapacity, the effectiveness of a notice is assessed objectively by reference to its contents, and not by reference to whether the individual recipient subjectively understood its contents: see VRRQ v Minister for Immigration and Citizenship [2026] FCA 77 at 66; see also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46; (2021) 284 FCR 62 at 52. Again, the Appellants were responsible for ensuring that they met the requirements for a visa. In similar circumstances to this case, Kaztmann J held that there was no denial of procedural fairness: see Quadri at [25].

43 Sometimes a refusal to grant an adjournment to allow a person the opportunity to obtain the necessary qualification or assessment is legally unreasonable. However, a refusal to grant an adjournment is usually found to be legally unreasonable when a person has started a process for obtaining the necessary qualification or assessment at the time an adjournment is sought, not when (as here) the person is asking for the opportunity to begin that process: see my decision in Virk v Minister for Immigration and Citizenship [2025] FCA 630 at [35]-[39]; Minister for Immigration and Border Protection v Pandey [2014] FCA 640: (2014) 143 ALD 640 at [51]-55. I agree with the primary judge that the Tribunal’s refusal to grant an adjournment in this case was not legally unreasonable (J [46]).

44 Conclusion – Appellant’s arguments are rejected: For these reasons, I reject the Appellants’ arguments. I find that the Tribunal complied with s 359AA of the Act in informing the Appellants of the need for a COE, and the consequences of the First Appellant not having one. It follows that there was no breach of procedural fairness, nor any breach of s 359A of the Act: see [30 ] above. I also find that the Tribunal’s decision not to adjourn was not legally unreasonable, nor a breach of procedural fairness.

45 No other obvious legal error in the Tribunal’s decision: For completeness, and because the Appellants do not have lawyers, I have looked at the Tribunal’s decision and the primary judge’s decision to check that there is not any obvious legal error: see COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at 20; Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2023] FCA 978 at 11. I am satisfied that there is not any obvious legal error.

conclusion

46 For these reasons, the appeal must be dismissed.

47 Costs: That raises the issue of costs. The usual rule is that the unsuccessful party (here, the Appellants) pay the costs of the successful party (the Minister). There is no reason why this usual rule should not apply.

48 The Minister seeks costs in a fixed sum of $5,000. The Court has a broad discretion whether to make a fixed sum costs order: BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at 29; Federal Court of Australia Act 1976 (Cth) s 43(3)(d); Federal Court Rules 2011 (Cth) r 40.02(b). In the case of proceedings to challenge migration decisions, the Rules set out an amount that may be claimed if an appeal is discontinued before hearing (currently $5,489), and a higher amount that may be claimed if an appeal is dismissed after hearing (currently $8,656): see Rules r 40.43, Sch 3 items 15.1 and 15.2. The Court must be satisfied that the amount of costs is reasonable and proportionate to the nature and complexity of the case, and may award a lesser amount: see Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288 at 18; Vedantam v Minister for Immigration and Multicultural Affairs [2025] FCA 179 at [13]-15. I am satisfied that the amount sought by the Minister is reasonable and proportionate.

| I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hill. |
Associate:

Dated: 1 April 2026

Top