Bhutani v Minister for Immigration and Citizenship [2025] FedCFamC2G 1298

1. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). By that decision, the Tribunal affirmed a decision by a delegate (Delegate) of the first respondent (Minister) cancelling the applicant's Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (student visa).

1. The applicant is a national of India. On 27 October 2014, the applicant was granted the student visa that is the subject of this proceeding.
2. On 12 July 2017, the Delegate cancelled the applicant's student visa under s 116(1)(b) of the Migration Act 1958 (Cth) (Act). This was on the basis that the applicant had failed to comply with a condition of the visa under Schedule 8 of the Migration Regulations 1994 (Cth). The Delegate found that the applicant had not complied with condition 8202(2)(a), by failing to maintain his enrolment in a registered course of study.
3. On 20 July 2017, the applicant sought review of the Delegate's decision by the Tribunal. The Tribunal invited the applicant to attend a hearing before it on 14 August 2019.
4. On 5 August 2019, the applicant sought postponement of the hearing on the basis of issues that he had experienced with migration agents. A new hearing date was set on 24 September 2019.
5. The applicant did not attend the scheduled hearing. On 25 September 2019, the Tribunal dismissed the application under s 362B(1A)(b) of the Act.
6. On 28 September 2019, the applicant applied for reinstatement of the application. On 3 October 2019, the Tribunal reinstated the application.
7. A new hearing date was scheduled on 24 October 2019. After the applicant failed to attend the hearing, his application was again dismissed.
8. On 31 October 2019, the applicant applied for reinstatement of the application. On 5 November 2019, the Tribunal reinstated the application. A new hearing date was scheduled on 19 November 2019. That hearing was attended by the applicant.
9. On 20 November 2019, the Tribunal invited the applicant to provide further information in support of his application for review. Information was provided in response on 29 November 2019.
10. On 25 January 2020, the Tribunal affirmed the Delegate's decision.

1. The Tribunal summarised the procedural history to the matter and the evidence before it at [1]-[18] of its decision.
2. The Tribunal was satisfied that a ground for cancellation existed. This was in circumstances where it found that the applicant was not enrolled in a registered course of study from 20 February 2017 until the date of the Delegate's decision on 12 July 2017 (at [19]-[28]).
3. The Tribunal proceeded to consider whether the visa should be cancelled.
4. The Tribunal observed that it had raised with the applicant a certificate before it that was purportedly issued "under s. 375A" of the Act. The Tribunal considered that the certificate was valid, but that it had provided the applicant with the "essence of the information" covered by the certificate. The Tribunal did not consider it necessary to rely upon information covered by the certificate that the applicant was not attending college, given the applicant's own evidence that he had not done so since September 2016. It also did not rely upon a general allegation regarding the applicant's involvement in drugs, given specific evidence that had been given by the applicant in this regard. The Tribunal similarly gave no weight to an allegation that the applicant had been working illegally. This was considering the lack of specifics in the allegation and the applicant's evidence that his casual employment had not breached his work conditions (at [34]-[37] and [42]-[44]).
5. The Tribunal considered the purpose of the applicant's travel to and stay in Australia, and whether the applicant had a compelling need to travel to or remain in Australia, at [30]-[39] of its decision. The Tribunal accepted that the applicant's purpose for remaining in Australia was principally for the purpose of study. However, the Tribunal was concerned by the fact that the applicant had not been enrolled in a course of study since his deferral from Torrens University expired in February 2017. The Tribunal was also concerned by the lack of documentary evidence to support the applicant's claims that he had attempted to obtain a Confirmation of Enrolment (CoE) prior to the issue of the Notice of Intention to Consider Cancellation (NOICC) on 30 June 2017. The Tribunal considered that the applicant had not subsequently been enrolled in a course of study since the cancellation of his enrolment. The Tribunal therefore gave the applicant's purposes in travelling to and remaining in Australia "only a little weight against cancelling the visa".
6. The Tribunal accepted that there was no convincing evidence before it of the applicant's breach of his visa conditions, other than the breach of his enrolment condition. This was given "a little weight" against cancellation of the visa (at [40]-[44]).
7. The Tribunal accepted that the applicant would suffer some hardship if the visa were cancelled. This was given "some weight against cancelling the visa" (at [45]-[46]).
8. The Tribunal considered the circumstances in which the ground of cancellation arose and whether there were any extenuating circumstances beyond the applicant's control that led to the grounds for cancellation (at [47]-[68]). At [58]-[60] the Tribunal reasoned:
   1. The Tribunal accepts that the demonetisation process in India occurred and accepts that this process may have caused difficulties and delays in transferring money out of India. However, after careful consideration of the applicant's evidence and his submissions to Torrens University and the Tribunal, the Tribunal does not consider that there are extenuating circumstances or that the circumstances were beyond the applicant's control. The applicant has provided no documentary evidence to support his claim that his family attempted to transfer money out of India, or that they were unable to do so because of the demonetisation process. The applicant told Torrens University in his submission of 31 March 2017 that he had no evidence in support of this claim as to the effect of demonetisation, and he made the same statement to the Tribunal. According to the applicant's written statement to Torrens University, his family attempted to transfer money, but this resulted in the seizing of bank accounts. He stated that by the date if this statement his family had recovered the money which had been seized. The Tribunal considers that if the applicant's family's bank accounts had been seized, there would be documentary evidence of such seizure. Similarly, if his family were satisfied that they had recovered the seized funds, there would similarly be documentary evidence to support this.
   2. The Tribunal also notes that in his submission to the Tribunal, the applicant states that the demonetisation process resulted in a requirement for verification for foreign transactions, as well as a longer verification process. The applicant's evidence in this submission is not that funds could not be transferred overseas, but that verification was required, and that such verification could be lengthy. On the applicant's evidence the demonetisation process commenced in November 2016 and he was required to re-enrol in February 2017, which provided the applicant with a period of at least three months for the transfer of funds. The Tribunal also notes that the applicant visited India in November 2016, during his deferral period, and therefore considers that the applicant would have been on notice of the demonetisation process, as well as been physically present in India to assist his family with the verification process. Accordingly the Tribunal gives little weight to the applicant's claims that the demonetisation process was the cause of his inability to enrol. The Tribunal finds that the applicant had sufficient time to organise the transfer of funds, and also considers that if this was the case, it was open to the applicant to apply for a further deferral of his studies.
   3. In any case, having genuine access to funds is a requirement for the Student visa. The applicant would have been aware that he was required to pay course fees and provided a financial guarantee to the Department before his visa was granted. The Tribunal considers the circumstances which the applicant has outlined in his evidence are not exceptional or beyond the visa holder's control.
9. The Tribunal considered that it was within the applicant's ability to take further steps to address his enrolment situation, particularly given he was the holder of a student visa granted primarily for the purpose of study. Although the Tribunal found some aspects of the University's communications to be flawed, the Tribunal was not satisfied with the applicant's explanations regarding why he had not addressed his enrolment issues (at [61]-[66]). At [67]-[68], the Tribunal considered:
   1. The Tribunal has also considered the applicant's claims that he was suffering depression and was in a state of trauma, as claimed in his response to the NOICC. The Tribunal notes however that the applicant has not received any treatment for a mental condition whilst in Australia and there is no documentary evidence of him suffering any medical conditions, other than the referral letter to a psychiatrist prepared by his general practitioner on 4 July 2017, after receipt of the NOICC. On the applicant's own evidence he did not see the psychiatrist as the wait was over two months. The Tribunal accordingly gives no wait to these claims, and notes that in any case, the applicant confirmed at hearing that although the trauma and depression which he claims to have experienced may have affected his ability to study, they were not the reason why he was unable to enrol, which he claims was due to the demonetisation process.
   2. Overall the Tribunal considers that there is little in these circumstances which were beyond the applicant's control. The applicant was required to be present in Sydney by 20 February 2017 to recommence his studies, but on his evidence he did not become aware of the intention to cancel his enrolment until he received the letter from Torrens University warning of cancellation on 16 March 2017. The Tribunal does not consider the applicant's claims that he attempted to call the student service desk of the university a number of times to be sufficient, having regard to the applicant's responsibilities to maintain enrolment under his Student visa. As noted already, the Tribunal considers there to be insufficient evidence that the applicant's ability to enrol was affected by the demonetisation process, and even if this were the case, it is a requirement for the Student visa that an applicant have access to sufficient funds. Accordingly the Tribunal gives this consideration no weight against cancelling the visa.
10. Although the Tribunal considered that the applicant had not been entirely transparent with the Department, the Tribunal noted that the applicant had responded to the NOICC and appeared to have been, overall, cooperative with the Department. The Tribunal gave this consideration "a little weight against cancelling the visa" (at [69]).
11. The Tribunal considered the mandatory legal consequences the applicant may face, such as the potential to become an unlawful non-citizen who may be detained and removed, as well as potential difficulties the applicant may encounter with being granted further visas in Australia. This was given "little weight against cancelling the visa" (at [71]).
12. The Tribunal observed that no issues regarding consequential cancellations had been raised. The Tribunal considered that there was nothing to suggest that Australia had obligations under relevant international agreements that would be breached as a result of the cancellation. These factors were weighed neither in favour of nor against cancelling the visa (at [70] and [72]).
13. At [75], the Tribunal concluded:
    1. Considering the above matters as a whole, the Tribunal concludes that the visa should be cancelled. In particular the Tribunal places weight on the circumstances in which the ground for cancellation arose. As noted above, the Tribunal considers there is insufficient evidence that the applicant's ability to enrol was affected by the demonetisation process, and considers there to be insufficient evidence of extenuating circumstances or circumstances beyond the applicant's control. The Tribunal has given this consideration no weight against cancelling the visa. Having considered each matter, the Tribunal considers that overall they provide insufficient weight against cancelling the visa.
14. On the basis of the above, the Tribunal affirmed the decision to cancel the visa (at [76]).

1. The applicant sought judicial review of the Tribunal's decision through an application filed on 2 March 2020. The matter remained in the central migration docket for some years before being allocated to my docket more recently and listed for hearing. The following ground of review was identified in the application:
   1. The Tribunal made Jurisdictional error while affirming its decision to affirm its decision to cancel the applicant's student visa class 573 by applying incorrect application of the power to cancel under s 116(1)(b) of the Migration Act 1958 (The Act). By exercising its discretion, Tribunal failed to apply its power incorrectly and applied incorrect application while applying Departments General Cancellation powers.

Reason: The Tribunal during the hearing tool extraordinary time and length to conduct the hearing asking applicant detailed questions regarding the cancellation and NOICC, the applicant did provide number of relevant documents and reasons such as:

A. There were compelling circumstances existed at the time of applicant unable to enrol such as the situation in his home country due to changes in the Government policy regarding demonstration which made extremely difficult for him to have his funds transferred from overseas.

B. He was suffering from ongoing medical condition and did provided Medical reports confirming his medical condition

C. That the applicant was unable to re-enrol due to universities and colleges refused to provide offer letter due to his cancellation.

D. That he did complied with his visa condition in the past.

E. That he was suffering from illness and drug addiction to issues relation to his anxiety.

F. That there was family member of his family undergoing medical condition (cancer) which has resulted into extreme stress to his personal life

G. That he and his family will suffer significant financial hardship due to cancellation as this will be detrimental impact on the family and his career aspirations in India.

H. That the circumstances which was beyond control of the applicant, which is demonetisation and illness in the family along with ongoing issue with the University.

(As per the original)

1. The ground relied upon by the applicant contended that the Tribunal incorrectly applied s 116 of the Act. Issue was taken with the time and length of the hearing before the Tribunal, which was said to have involved "detailed questions". The ground repeated a number of claims made to the Tribunal as to why the visa ought not to have been cancelled. The ground additionally claimed that the applicant had been suffering from "drug addiction", however, it is not apparent on the evidence that a claim of this nature was made to the Tribunal.
2. As was submitted by the Minister, none of the matters raised in the application demonstrated an incorrect understanding on the part of the Tribunal regarding s 116 of the Act. It is not apparent, on my reading of the Tribunal's decision, how the Tribunal could be said to have misunderstood that power or applied it in a manner that was not legally or logically open to the Tribunal. It is not clear that the applicant's complaint in this regard rises above disagreement with the merits of the Tribunal's decision. As was explained at the hearing of this matter, this Court has no power to set aside the Tribunal's decision on the basis of disagreement alone.
3. At the hearing of this matter, the applicant contended that there was a group of people conspiring to do him harm which had affected his review before the Tribunal. The applicant pointed to evidence in the Court Book that someone had sent submissions, purportedly from his account, that were adverse to his case. He pointed to the allegations that had been made against him regarding use of drugs and other issues. The applicant said that he had been misinformed that he was unable to obtain a CoE whilst on a bridging visa. The applicant submitted that he had been the victim of fraud.
4. I explained that, in some cases, "fraud on the Tribunal" may provide a basis for setting aside the Tribunal's decision: see, for example, SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189. However, it appears that allegations in this regard were raised before the Tribunal and were considered by the Tribunal. The applicant raised before the Tribunal misconduct by agents, including a submission purportedly made from his account with which he did not agree. The Tribunal accepted that the statement in question had not been made by the applicant and stated that it had therefore been disregarded (at [15]-[16]). The Tribunal appears to have preferred the applicant's evidence to the allegations made against him that were the subject of the certificate (at [35]-[37] and [42]-[44]). It considered the explanation apparently given by the applicant at hearing for why he had not been enrolled after his visa was cancelled (at [32]). In these circumstances, it is difficult to see how any fraud "on the Tribunal" caused the Tribunal's decision to miscarry.
5. The applicant submitted that he had not been given a "proper chance" to elaborate upon this part of his case before the Tribunal. The applicant explained that he believed there was a conspiracy against him by a group of people. The applicant submitted that he had been unable to say what he wanted to say in this regard before the Tribunal, but had simply responded to the questions that had been asked by the Tribunal. The applicant submitted that he had been unaware that the hearing before the Tribunal was a final hearing, because he had not been informed of this. As the Tribunal had told him they would send him an email after the hearing, the applicant had thought there would be "more things going" on after the hearing. However, the email had simply requested documents, which the applicant had provided. The Tribunal had then proceeded to its decision.
6. I accept the Minister's submission that the evidence before the Court does not demonstrate that the applicant was deprived of the hearing required under s 360 of the Act. The applicant was invited to a hearing to "give evidence and present arguments relating to the issues" in his case. I accept that the invitation did not specify that this may be the only hearing afforded to the applicant. However, I am not persuaded that it was required to do so. There was no requirement under the legislation to invite the applicant to more than one hearing. It is not apparent that a further hearing was (expressly) sought by the applicant before the Tribunal.
7. This conclusion is not changed by the fact that the Tribunal invited the applicant to provide certain information in writing after the hearing. Although the latter invitation indicated that failure to provide the information would result in the Tribunal proceeding to make a decision on the basis of the material otherwise before it, it did not suggest that the applicant would be provided with any further hearing if he provided the information.
8. It is understandable that the applicant, on reflection, may feel that he did not present the case that he wished to present before the Tribunal. It is also understandable that he may have hoped to have been provided with further opportunities before the Tribunal.
9. However, without more, I am not persuaded that the above demonstrates an error on the part of the Tribunal that would allow this Court to set aside the Tribunal's decision.

1. The Minister observed that at [35] of the Tribunal's decision, the Tribunal considered a certificate said to have been issued under s 375A of the Act. The Minister observed that the certificate was actually issued under s 376 of the Act.
2. However, the Minister submitted that the Tribunal's error in this regard was relevantly immaterial. This is in circumstances where the Tribunal correctly identified that the certificate was valid, informed the applicant of the existence of the certificate and discussed with the applicant the essence of the information that was the subject of the certificate. Considering this, together with the fact that the Tribunal did not ultimately rely upon the underlying information, the Minister submitted that the Tribunal's error in referencing the incorrect section of the Act could not, within context, have been material.
3. I accept the Minister's submissions. Although the Tribunal referred to s 375A, rather than s 376, of the Act, it is not apparent how this error could be said to have been material within the context of the Tribunal's decision.
4. There does not appear to be any basis for doubting the Tribunal's assessment that the non-disclosure certificate was valid (albeit under s 376, rather than s 375A, of the Act). This is in circumstances where the basis of the certification was that disclosure may "disclose, or enable a person to ascertain the existence or identity of, a confidential source of information".
5. The Tribunal nonetheless appears to have disclosed the "essence of the information" that was covered by the certificate. That information appears to have concerned allegations that the applicant had not been attending college, had been involved with drugs and had been working illegally. The Tribunal relied upon the applicant's own evidence regarding his non-attendance at college (at [36]) and involvement with drugs (at [44]-[43]). It did not rely upon the allegation that the applicant had been working illegally (at [37]). It therefore does not appear that the Tribunal relied upon the information in a manner adverse to the applicant.
6. Having regard to the above circumstances, in their totality, I accept the Minister's submission that there is insufficient basis in this case for finding that the error was material in the sense of depriving the applicant of the "possibility of a different outcome": see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); and Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [2]- [3], [38] (Bell J, Gageler J, as his Honour then was, and Keane J).
7. I therefore accept the Minister's submission that the Tribunal's error in this regard does not provide this Court with a basis for setting aside the Tribunal's decision.

1. It follows that the application before the Court must be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.