Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1993

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Act) of a decision of the second respondent (Tribunal) made on 27 May 2019. The Tribunal 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 (visa).
2. Reference in these reasons to 'CB' pages are references to the Court Book that was tendered and admitted as evidence at the hearing on 9 October 2025 and marked exhibit 'R1'.

1. The applicant is a citizen of the Republic of India (CB 12). The applicant first arrived in Australia on 19 February 2009 at the holder of a student visa. The applicant proposed to undertake a course in vocational English and then a Diploma in Community Welfare Work (CB 80 and 138).
2. The applicant thereafter obtained four further student visas and undertook a series of certificate and diploma level courses in painting and decorating, building and construction, business, leadership and management.
3. On 14 September 2017, the applicant applied for the visa (CB 11-75). The applicant proposed to undertake a Bachelor of Nursing degree at Deakin University (CB 12). Attached to the application was a letter of offer from Deakin University dated 13 September 2017 (CB 38-43).
4. On 10 November 2017, a delegate of the Minister refused to grant the applicant the visa (CB 74-84). The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212(a) of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations).
5. On 24 November 2017, the applicant applied to the Tribunal to review the delegate's decision (CB 85-6).

1. On 3 April 2019, the Tribunal wrote to applicant's registered migration agent inviting the applicant to provide information, including proof of enrolment in a registered course of study (CB 95-7).
2. In response to that request, the applicant completed a Request for Student Information Form and submitted various documents to the Tribunal in support of the application for review (CB 103-115). This included a current Certificate of Enrolment (CoE) for a Diploma of Nursing at the Gordon Institute of TAFE (CB 113).
3. On 8 May 2019, the Tribunal invited the applicant to attend a hearing before the Tribunal to be held in Brisbane on 27 May 2019 (CB 120-3). In that invitation, the applicant was asked to provide at least seven days before the hearing date: documents of past studies, a written statement addressing the issue of whether she was a genuine applicant for entry and stay as a student, and a copy of a current CoE or other documents showing that she was enrolled in a registered course of study, as required for the grant of the visa (CB 122). On the same date, the applicant's agent asked that the hearing take place in Melbourne (CB 124). The hearing venue was then changed to permit the applicant to appear from Melbourne (CB 127-9).
4. On 17 May 2019, the applicant completed a response to hearing invitation form (CB 132-4). PRISMS records obtained for the Tribunal hearing showed that the applicant's enrolment in a Diploma of Nursing course had been cancelled on 23 March 2018 for non-commencement of studies (CB 135 and 139).
5. The hearing before the Tribunal proceeded on 27 May 2019. The applicant was represented by her registered migration agent and assisted by an interpreter of the English and Punjabi languages (CB 140-2).
6. Following the hearing, the Tribunal delivered oral reasons for decision affirming the delegate's decision to refuse to grant the visa (Decision) (CB 144-6). These were reduced to writing on 13 June 2019 (CB 150-4). For reasons that will become apparent, a transcript of the hearing and oral reasons were obtained and produced by the applicant to this Court, together with an audio recording that was tendered in evidence at the hearing before this Court. The recording was marked exhibit 'A3' and the affidavit of Catrina Ford affirmed 6 August 2025 that annexed the transcript was tendered as exhibit 'A1'.

1. In the Decision, the Tribunal summarised the delegate's decision and referred to the requirements of cl 500.211 to 500.218 of the Regulations. Clause 500.211(a) of the Regulations required as a primary criterion that the applicant be enrolled in a registered course of study at the time a decision is made on an application. The applicant did not provide proof of enrolment and conceded that she did not have a CoE and was not enrolled in a current course of study. The Tribunal recorded that the applicant requested an adjournment of two to three weeks to obtain a CoE but that the request for an adjournment was refused by the Tribunal because the applicant provided no explanation as to any basis to believe that attempts to obtain a CoE will be any more successful than her attempts over the last two months to obtain one (CB 154 [11]). The Tribunal found that the criteria for the grant of the visa was not met and that the delegate's decision must be affirmed (CB 154 [13]).
2. On 24 June 2019, the applicant commenced proceedings for judicial review by originating application (CB 1-7). The originating application was accompanied by an affidavit affirmed by the applicant on the same date (CB 8-10).

1. Procedural orders were made by registrars of the Court on 28 January 2022 and 26 February 2025. A hearing was listed before Judge Gostencnik on 5 June 2025 which was subsequently vacated by consent.
2. On 10 July 2025, Judge Gostencnik ordered that the applicant file and serve an amended application for judicial review, affidavits and outlines of submissions.
3. On 11 July 2025, the applicant filed an amended application for review in which there was one simple ground of review, as follows:
   1. There was not a real and meaningful hearing afforded to the Applicant as required by section 360 of the Migration Act 1958.
4. On the same day, the applicant affirmed an affidavit explaining her recollection of the hearing before the Tribunal and claiming that she was unable to articulate the matters that she wanted the Tribunal to consider because she was nervous, anxious and in shock. The affidavit filed with the Court was not witnessed and a further witnessed version of the affidavit was filed and dated 18 July 2025. This affidavit and the annexures thereto were marked as exhibit 'A2' at the final hearing before this Court on 9 October 2025.
5. The final hearing of the amended application took place in person at Melbourne on 9 October 2025. Mr Aleksov of counsel appeared for the applicant. Mr Keneally of counsel appeared for the Minister. The applicant was also assisted by an interpreter of the English and Punjabi languages.
6. The recording of the hearing before the Tribunal was played for the benefit of the Court and tendered in evidence (Exhibit 'A3'). The recording was relatively brief and is accurately transcribed in the transcription obtained by the solicitor for the applicant and exhibited to her affidavit affirmed 6 August 2025 (exhibit 'A1'). However, the recording provided the Court with insight into the tone and demeanour of the applicant and the presiding member during the hearing before the Tribunal.
7. Counsel for the applicant tendered the affidavit of the applicant affirmed 18 July 2025 but did not read or seek to rely on paragraph [10(k)] of that affidavit.
8. At the hearing before this Court, counsel for the Minister sought and obtained leave to cross examine the applicant regarding her recollection of the hearing before the Tribunal and of her knowledge of the requirement to obtain a CoE in a registered course of study.
9. In cross examination, the applicant conceded that she knew that she required a new CoE but claimed that she did not know it was required for the hearing. The applicant claimed that she thought she would be able to obtain a new COE within two weeks but that she was unprepared for the hearing and 'froze' when the presiding member kept asking questions and was not listening to her. After hearing the recording, the applicant agreed that her recollection of the hearing in paragraph [5] of her affidavit affirmed 18 July 2025 was inaccurate. The applicant confirmed that paragraph [10] of her affidavit contained the substance of what she wanted to explain to the Tribunal. There was nothing more that she wished to add.

1. Mr Aleksov relied on an outline of written submissions dated 11 July 2025 in which the applicant submitted that at the hearing before the Tribunal, the applicant was not given a real or meaningful opportunity to plead her case. Instead, the Tribunal members conduct toward the applicant left her stunned and unable to present her case. This was procedurally unfair, and the applicant was not afforded the opportunity that s 360 of the Act afforded her. This was a jurisdictional error by the Tribunal that was material.
2. The error was material because had the applicant been granted the two or three-week adjournment requested, then paragraph [10] of her affidavit disclosed that the outcome of the review could have been different and the undemanding test of materiality was met. The applicant was not given the opportunity to explain why she was unable to obtain a CoE for the purpose of the hearing and had she been given a genuine opportunity to do so, then the outcome of the review may have been materially different.
3. Mr Aleksov referred to passages in the transcript where the presiding member expressed himself in a forceful and definitive manner which reflected the denial of the opportunity of a fair and meaningful hearing. In particular, page 2 lines 21-24, page 3 lines 3-5 and page 3 line 13 of the transcript and this was also reflected in the member's tone as recorded in the recording.

1. Mr Kenneally relied on an outline of written submissions dated 23 July 2025 and a list of authorities dated 28 July 2025.
2. There was no dispute between the parties that the Tribunal must afford an applicant a real and meaningful opportunity to be heard (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [33] per Gray, Cooper and Selway JJ (SCAR)). However, the threshold for jurisdictional error is high. The applicant must show that they were unable to give evidence or present arguments in relation to the issues in the review, not merely that they found the hearing difficult and stressful (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [22] and [37] per Keane CJ (SZNVW) and BJB18 v Minister for Immigration and Border Protection [2018] FCAFC 49 at [43] per Kenny, McKerracher and White JJ (BJB16)).
3. The Tribunal is not required to assist the applicant or inquire into whether the applicant's case could be better presented or to actively assist the applicant to put his or her case forward (SCAR at [35]-[36] and SZNVW at [32]-[35]).
4. The Tribunal's conduct must be such as to prevent the applicant from making their case (Ikupu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 74 at [23]-[25] per Jagot J (Ikupu)).
5. Simply because a litigant in person may be or feel under stress and fails to present their case effectively does not render the Tribunal in breach of s 360 of the Act (SZSGB v Minister for Immigration and Citizenship [2014] FCA 149 at [21] per Farrell J (SZSGB)).
6. The question to be determined by the Court is whether the hearing afforded the applicant a real and meaningful opportunity to present her case as required by s 360 of the Act.
7. In oral submissions, Mr Kenneally put the issue to be determined more succinctly, namely whether the hearing before the Tribunal was objectively fair.
8. It was submitted that the applicant was clearly on notice of the need to establish enrolment in a registered course of study. This was no surprise to the applicant or her agent. The applicant must have known that her previous CoE had been cancelled for non-attendance (CB 135-9). Further, during the course of the hearing, the applicant was neither interrupted nor denied the opportunity to speak, and she was also able to seek the assistance of the interpreter and her agent (which she did). The presiding member's tone was firm but not aggressive or intimidating. The member offered the applicant time to consider her position and take advice. The presiding member also queried with the applicant whether an adjournment would achieve any different result. The applicant responded that she thought she could get CoE but could not provide a reason or logical basis to support her belief.
9. It was submitted that it matters not that the applicant claims that she 'seized up' or 'froze'; the question to be determined by the Court is whether the hearing was objectively unfair. If the applicant did 'freeze up', it was not due the presiding members conduct but was due to a lack of preparation.
10. The Minister did not dispute that based on the applicant's evidence in paragraph [10] that if the Tribunal did err, a materially different outcome could have occurred and therefore 'materiality' was not in issue.

... Further, it is a common experience of applicants at a Tribunal hearing that they will be uncomfortable and experience stress from the environment but it is well established that this will not be enough to vitiate the hearing: see NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983 per Branson J at [51]-[52]. There is no medical evidence, transcript or recording of the Tribunal hearing before the Court which would substantiate a claim that the appellant was effectively denied a hearing as required by s 425 because of any infirmity. It is also not apparent from the Tribunal's decision record that the appellant was unable to present evidence and argument at the hearing.

1. Section 360(1) of the Act requires the Tribunal to invite an applicant for review to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 360(2) of the Act contains exceptions to the general rule. The invitation and hearing must be a meaningful one and not 'a hollow shell or an empty gesture' (Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31] per Goldberg J; SCAR at [33]).
2. Where the applicant appears before the Tribunal, the Tribunal must conduct the hearing in a manner that is fair (SCAR at [35] and [42]; SZNVW at [76]-[77]). A failure to do so is a failure to afford the applicant procedural fairness and a breach of the statutory obligation (Ikupu at [22]-[25] and [42]; SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [31]-[32]). This will result in jurisdictional error.
3. The applicant did not produce at the hearing any medical or other evidence that she was suffering from any disability or unable to effectively participate in the hearing. The applicant was also assisted at the hearing before the Tribunal by her agent. When asked by the presiding member if the applicant required time to consider her position and take advice, the applicant did so. The recording reveals that the applicant was clearly nervous and anxious and that the Tribunal member was assertive, perhaps even stern, but not so assertive as to be overbearing. There was no denial of a fair hearing.
4. There can be no doubt that hearings before the Tribunal and this Court can be stressful and sometimes daunting for litigants in person, even for those with representation. This may affect the litigant in person's ability to represent themselves and the Tribunal and this Court must be alert to and mindful of the sensitivities of litigants appearing before them. As Hill J observed recently in Virk v Minister for Immigration and Citizenship [2025] FCA 630 at [23] (Virk):

The duties that courts owe to unrepresented litigants have been discussed in cases such as SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing), and NWQR v Minister for Immigration, Citizenship, Migrant Services [2021] FCAFC 30 at [27] (the Court). The principles are conveniently summarised by Moshinsky J in Wahed v Minister for Home Affairs [2019] FCA 247 at [26] as follows (citations omitted):

Courts have an overriding duty to ensure that a trial is fair to all parties. In the context of an unrepresented litigant, that duty requires the Court to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case ... However, there is no statutory right to legal representation. Nor is there any absolute right to legal representation at common law... In civil proceedings, procedural fairness does not require that a party be provided with legal representation, no matter how serious the consequences of the proceedings might be ...

1. There have been numerous other statements of principle regarding the need to exercise caution when dealing with unrepresented litigants for whom English is not their first language and the need for cultural sensitivity, especially in migration proceedings. In MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [100], Mortimer J (as her Honour then was) said:

In a judicial review application (or an extension of time application in relation to judicial review) the absence of legal representation for an applicant will almost always mean an applicant will be unable to advance a case commensurate with the kind of arguments that are likely successfully to impugn the decision under review. Of course some self-represented people have the capacity to put some arguments - whether through previous court experience, study, outside assistance or simply natural talent. The vast majority do not, especially when additionally disadvantaged by issues of language and unfamiliar culture. In this context, what the descriptor "fair hearing" encompasses is open to debate, even if the phrase is confined to procedural fairness. The disparity of resources and capacity is too great for a hearing to be "fair" in the way a hearing can be "fair" when the parties are legally represented....

(see also SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 at [37] per Allsop CJ, Robertson and Mortimer JJ and the cases cited)

1. However, I am not satisfied that the hearing before the Tribunal was conducted so as to render the hearing objectively unfair. The applicant was given the opportunity to explain her position and most importantly, to explain why she believed that she would be able to obtain a CoE within two to three weeks when she had been unable to do so in the preceding months before her hearing. Paragraph [10] of the applicant's affidavit affirmed 18 July 2025 provides evidence of why the applicant did not have a CoE at the time of the hearing, but it does not explain why the applicant believed she would be able to secure enrolment in a registered and appropriate course at the time of the hearing or shortly thereafter. If anything, the fact that when she moved to Queensland and began searching for a nursing course 'but nobody accepted my application' did not assist the applicant's belief. The applicant confirmed in cross-examination that paragraph [10] of her affidavit contained the further evidence that she wished to provide to the Tribunal but felt prevented from presenting.
2. In Virk, Hill J considered the circumstance where an applicant before the Tribunal on a review of a refusal to grant a student visa does not have a CoE. His Honour noted the distinction between cases where an applicant seeks more time to continue the process of obtaining a certificate that is already in train and the situation where the applicant has not yet started the process (see Virk at [38]-[39]). His Honour was considering a refusal by the Tribunal to grant an adjournment in the context of a claim that the Tribunal acted unreasonably. That was not the submission made in this case.
3. In Virk, his Honour also referred to the decision in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [51]- [55] per Wigney J (Pandey). The facts in that case are similar to the facts here. The applicant did not have a CoE at the time of the Tribunal hearing and sought an adjournment to obtain one. The Tribunal refused and delivered oral reasons affirming the delegate's decision. His Honour found that it was plainly open for the Tribunal to conclude that Ms Pandey had been given ample opportunity to produce a CoE (see Pandey at [51]). Again, this was a case dealing with whether the refusal to grant an adjournment was legally unreasonable. However, his Honour observed that the Tribunal had 'genuinely free discretion' or 'decisional freedom' regarding the request for an adjournment.
4. Here, the Tribunal was placed in a similar situation. The applicant elected to proceed to the hearing with notice that a CoE would be required, whether at the hearing or at some time shortly thereafter. In doing so, the applicant faced the possibility that a request for a further indulgence at the hearing may not have been automatically forthcoming. The applicant did not explain to the Tribunal that steps had been taken to secure enrolment, because they had not. The applicant was also unable to explain why she believed that she could secure enrolment in an appropriate course in the near future. The Tribunal was not satisfied that the applicant could do so and was therefore within the decisional freedom to affirm the delegate's decision.
5. The transcript references referred to by Mr Alexsov in submissions do suggest that the presiding member had a firm view regarding the applicant's request for an adjournment and that he would not be easily persuaded to grant an adjournment. However, the recording reveals that the applicant was given some opportunity to explain her position but could not do so. That may have been because of stress, anxiety or fear but that is not enough to vitiate the hearing or make it unfair (SZSGB at [21]).
6. There was no failure to provide procedural fairness, and the hearing was not objectively unfair. The amended application for judicial review dated 11 July 2025 is dismissed.

1. The name of the first respondent must be amended to 'Minister for Immigration and Citizenship', which is the current Ministerial title which changed on 13 May 2025. An order will be made to that effect.

1. Costs should follow the event. In the outline of written submissions dated 23 July 2025, the Minister seeks the costs and disbursements of and incidental to the application for judicial review in the sum of $8,371.30, which is less than the new scale amount allowed for a contested application concluded at a final hearing provided for in Sch 2, Pt 3, Div 3 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). However, on 7 August 2025 Judge Gostencnik ordered that the Minister pay the applicant's costs thrown away by the adjournment of the hearing that day. Before making an order fixing the costs, I will hear the parties on the final figure for costs, noting the order made on 7 August 2025 and the scale figure permitted under the Rules.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.