Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1342

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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicant seeks judicial review of a decision of the second respondent (Tribunal) made 25 June 2019 to affirm a decision of a delegate of the first respondent (Minister) to cancel the applicant's Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (visa).
2. References in these reasons to 'CB' pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designed exhibit 'R1'.

1. The applicant is a citizen of India and was granted the visa on 22 March 2016 to complete a Master degree in Professional Accounting at the Holmesglen Institute (CB 12). Upon arrival, the applicant enrolled in an eleven-week English language course (CB 12). Thereafter, the applicant failed the English language course and did not undertake the Master degree in Professional Accounting (CB 12).
2. On 19 March 2018, a delegate of the Minister sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of the visa under s 116(1)(b) of the Migration Act 1958 (Cth) (Act) (CB 1).
3. In the NOICC, the delegate informed the applicant that based on evidence available from PRISMS records, the applicant appeared to have not been enrolled in a full-time registered course of study since 16 May 2017, thereby breaching visa condition 8202(2)(a) of Sch 8 of the Migration Regulations 1994 (Cth) (Regulations) (CB 1-2). The applicant was given the opportunity to respond to the information in the NOICC within five business days and give reasons as to why the visa should not be cancelled (CB 3).
4. On 23 March 2018, the applicant's migration agent requested an extension of time, of five days, to provide submissions in response to the NOICC (CB 6). On 26 March 2018, a delegate of the Minister granted the extension (CB 10). On 2 April 2018, a written response to the NOICC dated 27 March 2018 was provided to the Minister (Notice Response) (CB 11-6).
5. In the Notice Response, the applicant explained that his failure to maintain his enrolment was due to his poor English language skills and anxiety resulting in an inability to understand or undertake the Professional Accounting course. The applicant also explained that he returned to India in January 2017 because his aunt was very ill and her health and subsequent death caused him anxiety and distress. Another death in the family (the applicant's grandfather) and the sudden death of a cousin, further compromised the applicant's ability to undertake any form of study (CB 12). The applicant claimed that he applied to enrol in a Diploma of Hospitality course that he hoped would further his prospects of gainful employment (CB 14). The applicant asked that the delegate exercise the discretion not to cancel the visa due to the hardship suffered by the applicant and to give the applicant another chance to study in Australia (CB 16).
6. On 27 July 2018, the delegate of the Minister cancelled the visa (CB 64-76).
7. On 30 July 2018, the applicant applied to the Tribunal for a review of the delegate's decision (CB 77-8).
8. On 17 May 2019, the Tribunal invited the applicant to appear and give evidence at a hearing to take place on 7 June 2019 (CB 84 - 90).
9. On 3 June 2019, the applicant submitted a statement and submissions to the Tribunal explaining why the visa should not be cancelled (CB 93-8).
10. On 7 June 2025, there was a hearing before the Tribunal. The applicant was assisted by a migration agent and interpreter (CB 116-8). After the hearing, the applicant submitted a report from a treating psychologist explaining that the applicant suffered from anxiety and depression due to family issues (CB 124).
11. On 26 June 2019, the Tribunal delivered written reasons affirming the decision to cancel the visa (Decision) (CB 129-139).

1. In the Decision, the Tribunal considered the applicant's background and history of study. The Tribunal noted that the Provider Registration and International Student Management Systems (PRISMS) records indicate that the course provider, Holmesglen Institute, terminated the applicant's enrolment on 16 May 2017 due to the non-commencement of studies (CB 133 [11]).
2. The Tribunal considered the applicant's response to the NOICC and the applicant's evidence at the hearing before the Tribunal on 7 June 2019. The Tribunal recorded in the Decision that the applicant conceded at the hearing that he had been in breach of the con visa for the period identified by the delegate (CB 134 [13]). Accordingly, the Tribunal was satisfied that there was a breach of condition 8202(2)(a) of the Regulations (CB 134 [14]).
3. The Tribunal then considered the exercise of the discretion not to cancel the visa (CB 134-9 [15]-[34]). The Tribunal was not satisfied that the visa ought not to be cancelled (CB 139 [34]). The Tribunal made positive findings in favour of the exercise of the discretion but ultimately concluded that greater weight should be given to the non-compliance with the conditions of the visa and the failure to notify the Minister of the applicant's personal situation (CB 136 [24]). The decision of the delegate to cancel the visa was affirmed (CB 139 [35]).

1. On 29 July 2019, the applicant filed an application for judicial review with this Court. The application was supported by an affidavit sworn 29 July 2019 that simply annexed a copy of the Decision and said that the Tribunal erred on the grounds set out in the application. The only ground of review identified by the applicant was as follows:

(e) In light of the foregoing, the Tribunal acted improperly and unreasonably affirming the decision of the delegate.

1. The 'foregoing' was not identified and no further particulars of the grounds of review were provided. On 5 March 2025, a Registrar of the Court directed that the applicant file and serve any amended application, written submissions and any affidavit evidence on which the applicant seeks to rely at least 28 days before the date of the final hearing. The final hearing of the application for judicial review was listed on 23 May 2025 for hearing in person at Melbourne on 28 July 2025. The applicant did not file or serve any amended application, written submissions or further affidavit.
2. The hearing of the application for judicial review took place in person at Melbourne on 28 July 2025. The applicant appeared self-represented. The applicant did not require the assistance of an interpreter. Mr Hutton, solicitor, appeared for the Minister.
3. At the hearing on 28 July 2025, the Court confirmed that the applicant had received a copy of the Court Book prepared by the solicitor for the Minister and a copy of the Minister's written outline of submissions dated 14 July 2025.
4. Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to inform the Court of the basis on which the Tribunal made any error.
5. To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal's decision.
6. It was also explained that this Court cannot review the merits of the Tribunal's decision or grant the visa that is sought. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272).

1. Unfortunately, the applicant was not able to identify any error by the Tribunal in making the Decision. The applicant was invited to provide the Court with any further information that he had that may assist his application but there was none. The applicant conceded that he had made a mistake in breaching the conditions of his visa but simply wanted another chance to study in Australia. The applicant could not identify any error or mistake in the Decision or any failure to consider any relevant facts.
2. The applicant was asked if there was any further documents or things that should have been placed before the Tribunal that were not and whether there were any other aspects of the hearing before the Tribunal that he considered unfair. There were none.

1. Mr Hutton relied on the written outline of submissions filed on behalf of the Minister dated 14 July 2025. It was submitted that the Decision reflected a logical connection between the evidence before the Tribunal and the conclusions reached. There was nothing illogical, irrational or unreasonable in the findings of the Tribunal or in the exercise of the discretion not to cancel. The applicant conceded a breach of the visa conditions by not pursuing a registered course of study and the Tribunal clearly expressed why, as a matter of discretion, the delegate's decision to cancel should be affirmed.
2. The single ground of review in the application for judicial review did not identify a material jurisdictional error and that ground was not particularised in a meaningful way. That alone was a reason to dismiss the application (see WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] per Judge Lucev (WZATH)).
3. In the absence of a material jurisdictional error, the application for judicial review should be dismissed with costs.

1. The function of this Court is to review the Decision and determine if the Tribunal has fallen into error by failing to conduct the statutory task of reviewing the delegate's decision to cancel the visa in accordance with law.
2. It is not for this Court to review the merits of the Decision or to reconsider the weight given by the Tribunal to the evidence produced by the applicant before and at the Tribunal hearings. The weight to be given to the evidence was in the domain of the Tribunal and not by a judge conducting judicial review (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Tran)).
3. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12; 280 CLR 321 (LPDT), the plurality said at [3]:

[3]...Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

1. The Decision contains a very thorough analysis of the applicant's claims and evidence. There was no misunderstanding of the applicable law, the Tribunal did not ask the wrong question or identify a wrong issue. The Tribunal did not ignore relevant material or consider irrelevant material.
2. Further there is no evidence before this Court or material in the Court Book to suggest any failure to extend procedural fairness to the applicant by the Tribunal.
3. The Decision reflects the Tribunal's active engagement with the exercise of discretion not to cancel the visa due to the hardship and personal circumstances identified by the applicant as the reason for his breach of the visa conditions. However, the Tribunal was not persuaded that the discretion not to cancel should be exercised.
4. The only ground of review identified by the applicant in the application for judicial review was that the Decision was 'improper and unreasonable'. No particulars of that allegation were provided, and the applicant was unable to assist by identifying any impropriety or unreasonableness. The lack of particularity of the grounds of review is a reason to dismiss the application (see WZATH and WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J).
5. The Court has scrutinised the Decision but there is nothing in the reasoning of the Tribunal that suggests that 'no sensible authority acting with due appreciation of its responsibilities' would have exercised its discretion other than as it did (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [71]). Nor could it be said that the Decision is illogical or irrational in the sense that no rational or logical decision maker could arrive at the same decision on the same evidence (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) at [131] per Crennan and Bell JJ). Further, the Tribunal's decision to exercise the discretion as it did, had an 'evident and intelligible' foundation (Li at [76]) such that the Decision cannot be properly characterised as a legally unreasonable decision (SZMDS at [132]).
6. There is no material jurisdictional error apparent in the Decision. The application for judicial review is dismissed.

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

1. Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for judicial review in the sum of $5,000.00 which is less than the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2. The sum claimed is fair and reasonable and will be ordered to be paid by the applicant.

1. The name of the first respondent is amended to 'Minister for Immigration and Citizenship'.
2. The application for judicial review filed 29 July 2019 be dismissed.
3. The applicant pay the first respondent's costs and disbursements of and incidental to the proceeding fixed in the sum of $5,000.00.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.