Federal Court of Australia

Uddin v Minister for Immigration and Citizenship [2025] FCA 1109

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the first respondent’s costs of the application in the amount of $7,241.

3.    The name of the first respondent be changed to the ‘Minister for Immigration and Citizenship’.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

PERRAM J:

1    This application concerns the unsuccessful efforts of the applicant to obtain the grant to him of a student visa. A delegate of the Minister was unpersuaded that the applicant was enrolled in a Bachelor of Accounting degree and refused to grant the visa on the basis that he was not eligible for it. The Administrative Appeals Tribunal affirmed the delegate’s decision. The applicant sought judicial review in the Federal Circuit Court of Australia. When the matter was called on for hearing on 19 October 2020 the applicant failed to appear and the proceeding was dismissed for non-appearance. He then filed a reinstatement application which was dismissed on 5 May 2021.

2    The orders dismissing the reinstatement application are interlocutory in nature and the leave of this Court is required before any appeal can be pursued. An application for leave to appeal was not filed within the prescribed time. The applicant has now filed an application which seeks an extension of time in which to bring the leave application and, if that extension be granted, the granting of leave to appeal.

3    The facts are fully set out in the reasons of the Federal Circuit Court in Uddin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1044.

4    The applicant’s proposed draft notice of appeal has eight grounds as follows:

1. I do not agree with the Order made by Judge Obradovic on 5 May 2021 and ask the honourable Federal Court to accept my application 121 as per my telephone conversation with a Court Officer on 11 May 2021.

2. I was enrolled and completed courses in Australia from 2007 to 2017 which should lead the honourable Court to accept that I was and continue to be a genuine student.

3. My migration agent provided the Department with a copy of my confirmation of enrolment (CoE).

4. The Tribunal failed to accept my exceptional circumstances which prevented me from completing a degree.

5. The Tribunal had sufficient evidence about my compelling circumstances including Psychologist report dated 8/7/2017.

6. I attended the hearing, as invited by the Tribunal, and at the time of the hearing the Tribunal gave me two weeks to submit CoE. At the time two weeks were not enough as I stated in my Application under Migration Act and the Tribunal failed to give me the request for CoE in writing and at the time I was overseas and I could not provide CoE in a short time.

7. My migration agent provided the requested CoE which was valid from 21/9/2020 to 23/1/2022 being for Certificate IV in Commercial Cookery.

8. I am hoping that the Federal Court of Australia will consider my review positively.

5    Grounds 1 and 8 are formal only. Ground 2 proceeds on an understandable but erroneous view that this Court’s views as to whether the applicant is a genuine student are legally relevant. They are not.

6    As to ground 3, the Court below accepted that the applicant had provided the delegate with confirmation of his enrolment in the Bachelor of Accounting course but the delegate then ascertained that this had been cancelled due to a failure to pay the required fees. The applicant does not challenge that finding so this appears to go nowhere.

7    As to grounds 4 and 5, the existence of exceptional circumstances, even if established, was irrelevant to the function being performed by the Tribunal which was only to inquire into whether the applicant was enrolled in a course of study. As to ground 6, the Court below dealt with this contention at [22]-[23]:

[22] The assertion by the applicant in his judicial review application that the Tribunal failed to provide the applicant with sufficient time does not stand up to scrutiny. The applicant was on notice from at least 1 December 2017 that he could provide further information, and the Tribunal specifically requested confirmation of enrolment or other proof of enrolment by its letter of 23 August 2019 and then again provided the applicant with additional time to provide proof of his enrolment at the hearing on 20 September 2019.

[23] This is not insufficient time. As already noted, the applicant was at the hearing personally on 20 September 2019. There is no evidence that he raised the issue of having insufficient time to provide proof of enrolment due to his absence from the country subsequent to the hearing before the Tribunal. Despite the applicant being on notice for nearly two years of the necessity of providing enrolment documentation and being given multiple opportunities of doing so and receiving explicit requests that it be provided, the applicant had failed to do so.

8    I am not persuaded that any error is disclosed by reasoning in this fashion.

9    As to ground 7, it is not explained when this was provided or to whom. I do not read it as suggesting that the confirmation was provided to the Tribunal before it dismissed the review application. As such, it is a red herring. The difficulty is that the applicant has never provided, and does not now say that he did provide, to the Tribunal confirmation that he was enrolled in a course of study.

10    The proposed appeal therefore has no prospects of success. The application for an extension of time is refused with costs which I assess at $7,241 as per Sch 3, item 15.2 of the Federal Court Rules 2011 (Cth). The name of the first respondent will be changed to the ‘Minister for Immigration and Citizenship’.

Associate:

Dated:    9 September 2025