Garg v Minister for Immigration and Citizenship [2025] FedCFamC2G 1541

1. Ms Prachi Garg applied for a Student (Temporary) (Class TU) (Subclass 500) visa in 2022. A delegate of the minister (the first respondent in these proceedings) refused the application after finding Ms Garg failed to provide evidence that she would have 'genuine access to funds'. That meant Ms Garg could not satisfy the requirement in cl 500.214 of sch 2 to the Migration Regulations 1994 (Cth). Ms Garg sought review of that decision in the Administrative Appeals Tribunal.
2. The Tribunal affirmed the delegate's decision on 12 April 2023. The Tribunal's reasons were different to those of the delegate: it found Ms Garg did not satisfy the requirement in cl 500. 211(a) of sch 2 to the Regulations that she be enrolled in a course of study. The Tribunal had become aware Ms Garg's enrolment was cancelled because that information was contained on a database available to the Tribunal. Ms Garg says the Tribunal's decision is affected by jurisdictional error. She claims the Tribunal surprised her at the hearing with news that the education provider had cancelled her enrolment. She argued the Tribunal failed to comply with its procedural fairness obligations in relation to that disclosure. She also said the education provider failed to comply with its obligations when it cancelled her enrolment. She argued the Tribunal fell into error when it relied on the improperly cancelled enrolment.
3. The Tribunal's decision is not affected by material jurisdictional error. The application for judicial review must therefore be dismissed. I explain my reasons for that conclusion below.

1. The delegate's decision is reproduced in exhibit one (the court book) at pp 37ff. It is very short. After setting out the requirement that the applicant have 'genuine access to funds' in accordance with cl 500.214 of sch 2 to the Regulations, the delegate notes the applicant did not supply any evidence of financial capacity when requested. That meant Ms Garg could not succeed in her application for a visa. The delegate did not refer to any issues relating to Ms Garg's enrolment status.
2. Ms Garg sought review of the delegate's decision in the Tribunal. The application was filed on 13 July 2022. She was initially assisted by a migration agent. The agent withdrew before the Tribunal's hearing. On 3 March 2023, Ms Garg was invited to attend a hearing. The hearing invitation is reproduced at pp 71ff of the court book. The invitation expressly requests that Ms Garg provide "A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study...". The invitation also requested documents demonstrating she had genuine access to sufficient funds. The applicant subsequently provided several documents including financial information but she did not provide a current Certificate of Enrolment (COE). (The applicant initially insisted before me that she had supplied the COE when requested but subsequently acknowledged she had not. She said she had approached the education provider but could not get a response in time for the hearing.)
3. The Tribunal's hearing went ahead on 12 April 2023 after an earlier date was vacated at the applicant's request. I do not have a transcript of the hearing. In the absence of a transcript, the Tribunal's statement of reasons for decision provides the best evidence of how the hearing unfolded.

1. The Tribunal's decision and statement of reasons is reproduced in the court book at pp 123ff.
2. After noting the issue before the delegate related to compliance with cl 500.214 of sch 2 to the Regulations, the Tribunal said a question had arisen over whether the applicant was able to satisfy the requirement in cl 500.211(a) that the applicant be enrolled in a course of study: at [7]. The Tribunal noted the applicant had provided a COE document when she applied for the visa which suggested she was at that time enrolled in a Diploma of Community Services and a Graduate Diploma of Management Learning. The Tribunal records asking the applicant at the hearing whether (a) she was attending her course and (b) her enrolment was still valid, and she responded in the affirmative: at [12]. After discussing the applicant's financial relationship with her father, the Tribunal moved to discuss the status of her enrolment. It is convenient to reproduce the relevant passages at [14]-[15] in full:

14. The Tribunal also put to the applicant for comment pursuant to the provisions of s 359AA of the Act information that the Tribunal had obtained from her Provider Registration and International Student Management System Records (PRISMS). The applicant was informed that the relevant information was that according to her PRISMS records her enrolment in the Diploma of Community Services was cancelled by her education provider on 15 September 2022 due to non-payment of fees and the enrolment in the Graduate Diploma of Management was cancelled on the same date. The applicant was further informed that the information was important because if relied upon the Tribunal may find that she was not enrolled and did not satisfy the requirement for a student visa, further the Tribunal may also find that she had not provided true and correct information at her hearing in accordance with her affirmation, and these would subject to her comments or response would form a reason, or a part of a reason, for affirming the decision to refuse the student visa under review. The applicant was offered the opportunity of seeking additional time to respond but elected to respond immediately and told the Tribunal that she had gone to college and attended class but the last two months she had not attended as she had gotten distracted. The Tribunal the [sic] put to the applicant that the records indicated that it had been more than two months that she had not attended her course as her enrolment was recorded as cancelled on 15 September 2022. The applicant then responded that because of her father's ill health she became a little distracted and her anxiety was high, she also had COVID earlier in the year. She said about two months ago she went to the college and she had intended to go one day per week. The applicant then requested additional time to get back to things and requested additional time from the Tribunal to address her enrolment.

15. The Tribunal refused this request from the applicant for additional time. It had already postponed the hearing from 3 April 2023, to allow the applicant to obtain the necessary documents for hearing. In the hearing invitations sent to her on 3 March 2023 the applicant was requested to provide copy of her current Certificate of Enrolment or other documents that showed she was currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of Schedule 2 to Regulations for the grant of the visa. The applicant was on notice that this was required for the hearing. Further, she had earlier presented evidence to the Tribunal that was at best misleading that her studies were ongoing and fees paid to date in circumstances when she knew this could not be correct. The applicant then offered that she was not aware that her enrolment had been cancelled and suggested that any notices or emails may have gone to her spam box. The Tribunal considered this claim but due to concerns about the truthfulness of the applicant, and considering the time that had elapsed since her enrolment was recorded as cancelled, together with her claims that she had attended her college two months earlier, was not satisfied that the applicant was unaware of the status of her enrolment. The as [sic] put to the applicant the information in the records was that her enrolment was cancelled in September 2022, a few months after the visa refusal for non-payment of fees. The Tribunal was not satisfied that she had any proper contact with her education provider for some time. In circumstances when she had not paid fees or attended for some months, the Tribunal is not satisfied that the applicant has a current valid Confirmation of Enrolment in a course of study. [Emphasis added]

1. The highlighted text in the passages above relates to the question of whether an adjournment should be granted. The applicant apparently renewed the request for an adjournment later in the hearing but the Tribunal declined the request for reasons set out at [16]:

As the Tribunal had already postponed the matter at the applicant's requests, due to the unsatisfactory nature of the evidence she had presented and the period of time it is recorded since she was enrolled in studies the Tribunal did did [sic] not consider it appropriate to further delay a determination of the matter. The applicant was advised that the Tribunal intended to proceed directly to a decision on the matter.

1. The Tribunal concluded the applicant did not meet the requirement in cl 500.211(a) in the absence of evidence of a valid enrolment. It affirmed the delegate's decision on that basis.

1. The applicant's amended grounds of review were accompanied by two affidavits sworn by Ms Garg on 16 and 23 April 2025. Ms Garg said her solicitor had drafted the grounds on her instructions. The solicitor subsequently withdrew from the matter. I note the applicant obtained two adjournments to suit the convenience of a solicitor she said she had retained but the solicitor did not appear. The applicant ultimately appeared without representation at the hearing.
2. At the outset of the hearing, I explained the role of the Court in an application for review under s 476 of the Migration Act 1958 (Cth) (the Migration Act). I also discussed the sort of errors that might amount to material jurisdictional error. After hearing from Mr Johnson, counsel for the minister, Ms Garg agreed she was contending the Tribunal's decision was affected by two errors.
3. First, Ms Garg was critical of the way the Tribunal introduced the evidence about her cancelled enrolment into the hearing. She claimed she was taken by surprise. While appearing to concede in submissions that she initially agreed to address the evidence at the hearing as the Tribunal noted at [14] of its reasons, she insisted she had repeatedly asked for an adjournment and should have been given one. The failure to grant an adjournment was an important error, she said.
4. Second, Ms Garg said the Tribunal fell into error when it relied on the information about the cancelled enrolment because the education provider had not followed proper procedures. She argued the failure to observe those procedures amounted to a contravention of the National Code applicable to education providers which is authorised under Division 2 of Part 4 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act).
5. I will deal with each ground of review in turn.
6. As to the first ground: Mr Johnson pointed out the Tribunal's procedural fairness obligations are exhaustively defined in Division 5 of Part 5 of the Migration Act: see s 357A. The Tribunal complied with the obligation in s 360 to invite the applicant to attend a hearing to give evidence and present arguments. The hearing invitation clearly signalled the issue of the applicant's enrolment was before the Tribunal. Mr Johnson conceded in oral submissions that the information about the cancelled enrolment was adverse information of the kind that would attract the disclosure requirements of s 359A of the Migration Act. In circumstances where the Tribunal elected to put the information to the applicant at the hearing without advance notice, the requirements in s 359AA applied. Mr Johnson said a fair reading of the Tribunal's reasons - in particular, its account of what happened at the hearing - confirms the Tribunal did satisfy those requirements because the decision records:

(a) The Tribunal putting the information obtained from PRISMS to the applicant at the hearing. It also records explaining how that information might be a reason, or part of the reason, for affirming the decision under review; and

(b) The Tribunal offering the applicant an adjournment to consider her response to that information - an offer she declined at the time.

1. Mr Johnson said the Tribunal cannot be faulted under s 359AA of the Migration Act. Ms Garg disagreed. While she agreed before me that she initially elected to respond to the information gleaned from the PRISMS database at the hearing without seeking an adjournment, she did so because she was sure the information was incorrect and believed she could deal with it easily. She said she subsequently sought an adjournment and the Tribunal should have given her one at that juncture. Mr Johnson pointed out the Tribunal plainly regarded the later requests for an adjournment as being motivated by a desire to 'fix' the enrolment issue by engaging with the education provider. Mr Johnson said it is clear the applicant was not seeking time to respond to the information that had been put to her; she was seeking time to address a gap in her case.
2. I have no reason to doubt the Tribunal offered the applicant an adjournment so she might consider her response to the information. When the applicant elected to proceed without an adjournment, that arguably exhausted the Tribunal's obligation under s 359AA. But even if it was open to the applicant to rethink her decision to proceed and belatedly request an adjournment, a careful reading of the Tribunal's reasons suggests that is not what happened here. While the applicant did belatedly seek an adjournment, she was asking for "additional time to get back to things" (i.e., to get back to her studies), and time to sort out her enrolment issues so she might achieve compliance with the visa requirements: at [14]. That is not a request for additional time to respond to the information.
3. There was mention of a supposed failure on the part of the Tribunal to ask more questions about the cancellation of enrolment and the applicant's circumstances. The applicant did not press an argument to that effect at the hearing, but the Tribunal cannot be criticised in this regard in any event. The Tribunal was under no relevant duty to make further enquiries of the applicant or the education provider.
4. I am satisfied the Tribunal has complied with its procedural fairness obligations. The first ground of review is without merit.
5. That brings me to the second ground of review. It is misconceived. Even if I accept the education provider acted in contravention of the cancellation procedure mandated under the National Code established under the ESOS Act, that does not change the fact the enrolment was cancelled. There is no reason to suppose a contravention of the Code - if there was one - vitiated the cancellation decision. I acknowledge Ms Garg argued the enrolment cancellation decision might be affected by jurisdictional error if the provider did not comply with a statutory precondition to the exercise of its power, but Mr Johnson pointed out the provisions of the National Code did not create statutory requirements as such. If there was any doubt about all that, Mr Johnson argued it was resolved by s 40 of the ESOS Act which said "The only legal effects of the national code are the effects that this Act expressly provides for."
6. I am satisfied there is no substance to the applicant's second ground of review.

1. The application for judicial review must be dismissed. I will hear from the parties as to costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.