Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 2007

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 of a decision of the second respondent (Tribunal) made on 1 August 2019 affirming a decision of a delegate of the first respondent (Minister) to cancel the applicant's Student (Temporary) (Subclass 573) visa (visa) under s 116(1)(b) of the Migration Act 1958 (Cth) (Act).
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 designated exhibit 'R1'.

1. The applicant is a citizen of the Republic of India (CB 42). He first arrived in Australia on 30 March 2015 (CB 82) to undertake study in accordance with the visa. The visa was granted on 18 March 2015 and valid until 30 August 2018 (CB 28).
2. The visa was subject to condition 8202 in Sch 8 of the Migration Regulations 1994 (Cth) (Regulations). Condition 8202 requires the holder of a visa to be enrolled in a registered course of study (8202(2)).
3. From 6 April 2015 to 27 October 2015, the applicant completed a Certificate IV in Business Administration from the Zenith Business Academy (CB 56). He was then enrolled in a Diploma of Business at Zenith Business Academy (CB 53) from 30 November 2015 to 27 May 2016 (CB 53). After completion of that course, the applicant was enrolled in a Bachelor of Business (Information Systems Management) due to commence on 18 July 2016 and conclude on 30 June 2018 (CB 55).
4. On 25 May 2018, the Department of Home Affairs sent to the applicant a Notice of Intention to Consider Cancellation (NOICC) of the visa because the applicant ceased to be enrolled in a registered course of study on about 4 December 2016 (CB 11-5).
5. On 31 May 2018, the applicant retained a registered migration agent to respond to the NOICC on his behalf (CB 16). The agent requested an extension of time within which to respond to the NOICC because the 'applicant is a patient of depression and need some time'. Attached to the request was a letter of referral dated 28 May 2018 from Dr Bhajanpreet Singh Rawal to Dr Ashok Kumar Singh at the Bacchus Marsh Medical Centre for an opinion and management of ongoing anxiety (CB 18) (referral letter).
6. On 1 June 2018, the applicant's agent submitted a completed form 956 informing the Department that he had been appointed as agent for the applicant (CB 25-7). The form was countersigned by the applicant. No further documents were submitted to the Department in response to the NOICC.
7. On 19 June 2018, the visa was cancelled by a delegate of the Minister (CB 30-41).
8. On 26 June 2018, the applicant applied to the Tribunal to review the delegate's decision. The application for review was completed by the applicant personally and did not nominate an agent for correspondence (CB 42-3).
9. On 6 June 2019, the applicant was invited by the Tribunal to attend a hearing of his application for review and to give evidence and present arguments (CB 48-9). The hearing was scheduled to take place in person at Melbourne on 24 June 2019. The invitation also asked that the applicant provide any documents on which he intended to rely to support his case. Enclosed with the invitation was a 'Response to hearing invitation' form to be completed and returned to the Tribunal. The applicant did not respond to that invitation or complete the Response form.
10. The hearing proceeded before a member of the Tribunal on 24 June 2019, and the applicant appeared with the assistance of an interpreter in the English and Haryanvi languages (CB 50-2). The applicant produced for the Tribunal documents relating to a criminal offence of affray with which he had been charged and convicted arising from a fight at a night club in Melbourne in October 2016 (CB 57-77). He also produced copies of the certificates of enrolment (CoE) for the courses of study identified at [5] above (CB 53-6). No medical or specialist reports were produced to the Tribunal.
11. On 1 August 2019, the Tribunal dismissed the applicant's review and affirmed the delegate's decision to cancel the applicant's visa (Decision) (CB 80-5).

1. In the Decision, the Tribunal recorded the applicant's admission that he had not been enrolled in a registered course of study (or any course) since 4 December 2016 (CB 82 [11]). When considering the discretionary grounds not to cancel the visa, the Tribunal considered the matters identified in the Department's Procedures Advice Manual (PAM3) 'General visa cancellation powers'. The Tribunal noted that the applicant's evidence regarding his history of study was 'disjointed and often contradictory' (CB 82 [11]). The Tribunal found that the applicant did not attend classes in his bachelor degree course after completion of his diploma course in 2016. However, the applicant's explanation as to why he did not attend classes and why he was not enrolled was not clear. The applicant claimed that he was not aware that his enrolment had been cancelled for non-attendance until June 2018 (CB 83). The reason for this was also unclear.
2. The Tribunal found that one of the reasons the applicant did not attend to his course of study was that criminal charges were pending regarding the altercation in the night club in October 2016. However, those charges were not laid until early 2017 and there was no explanation given as to why the applicant stopped attending classes in 2016 and why the criminal charges prevented the applicant from studying (CB 83 [11]).
3. The Tribunal also found that there was no evidence of any medical reason why the applicant could not attend his course or undertake the requisite study. The applicant also did not produce an expert report identifying any condition that prevented the applicant from enrolling in a registered course (CB 83 [11]). The Tribunal was not convinced that cancellation of the visa occurred in circumstances that were beyond the control of the applicant.
4. The Tribunal was not persuaded that the visa should not be cancelled on discretionary grounds and affirmed the delegate's decision (CB 85 [12] and [13]).

1. The applicant commenced an application for judicial review by this Court on 26 August 2019 (CB 1-6). The application appeared to be prepared by the applicant and identified his personal email address as the point of contact for the Court. The applicant also declined the option of an interpreter.
2. In the application for judicial review, the applicant did not seek as relief a writ of mandamus requesting the matter be remitted to the Tribunal. An application that fails to seek a writ of mandamus or prohibition, or an injunction, has the result of not properly invoking the Court's jurisdiction under s 476(1) of the Act (see FRA18 v Minister for Home Affairs [2019] FCCA 2287 [15] and [21]). Noting that the applicant is unrepresented, it is understandable that the applicant may not have appreciated the importance of this technicality. The solicitors for the Minister have not raised this technicality in the written submissions made on behalf of the Minister and did not oppose an order amending the application to seek appropriate relief. The Court will order that the application dated 26 August 2019 is amended so as to seek a writ of mandamus. The Court has the power to do so, even on its own motion (see Singh v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 889 [44]-[51]). The Court finds that it is in the interests of justice and the overarching purpose of the Federal Circuit and Family Court of Australia (Division 2 (General Federal Law) Rules 2025 (Rules) to dispense with non-compliance by the applicant for the purpose of this proceeding.
3. The application for judicial review contained the following three grounds of review:
   1. That the Tribunal failed to consider the impact of the court case due to group affray and going to five court hearings and involvement of police in this matter. The case happened at the same time of my enrolment cancellation.
   2. The member also failed to acknowledge my mental state even during the hearing and assumed that I intentionally overlooked the matter. Though, it seems a long time, but when you are under extreme stress due to criminal conviction staring in your face, your life goes on hold till that matter is resolved. The member failed to consider the same as well.
   3. Therefore, the decision is arbitrary-without considering the impact of the-same-on a young person.
4. The application for judicial review was accompanied by an affidavit sworn by the applicant on 26 August 2019 in which the applicant repeated the grounds of review verbatim.
5. The application for judicial review was listed for directions before a registrar on 3 August 2020 and the applicant was ordered to file and serve an amended application, any further affidavits and written submissions at least 28 days before the final hearing.
6. On 25 March 2025, the applicant appeared by telephone at a callover before a registrar where orders were again made for the filing of further evidence and submissions. The applicant also confirmed receipt of the Court Book prepared by the solicitors for the Minister.
7. The final hearing of the application for judicial review was listed for hearing in person at Melbourne on 16 October 2025. The applicant did not file an amended application or any further affidavit evidence. In particular, no evidence was provided to the Court of any medical or mental health condition suffered by the applicant that may be relevant to the application for judicial review.
8. At the hearing on 16 October 2025, the applicant appeared self-represented. Ms Stone, solicitor, appeared for the Minister.

1. The applicant claimed that before he appeared before the Tribunal, he provided medical evidence regarding his mental health and a report from a treating psychiatrist to his migration agent. He also provided information from his education provider and CoEs. However, his migration agent disappeared, and the agent did not produce any documents to the Tribunal. The agent had all of his medical records and they were not produced. The applicant did not retain copies.
2. The applicant claimed that he asked the Tribunal for an adjournment to obtain new medical records and reports. He claimed that he asked the Tribunal for more time to provide his records. However, he could not provide records because seven years had passed and the records no longer exist. The applicant said that he told the Tribunal, 'I just need four to six weeks to give all the explanation, whatever I have and after 15 days they just give me the cancellation'.
3. When asked what further evidence he could have given to the Tribunal, the applicant said 'all my medicals, certificates, how many visits I did...I could not find the copies but I went again to the medical centre, but they said they don't have records of more than seven years'.
4. The applicant claimed that he asked the Tribunal for an adjournment of the hearing, but it was unreasonably refused by the Tribunal. The applicant confirmed that he received the invitation to attend a hearing and telephone calls, but he did not respond to the invitation or ask for more time before attending the hearing. The applicant also confirmed that the Tribunal was provided with the referral letter from his General Practitioner, the documents relating to his criminal charge and conviction for affray and the CoE for the courses he did and did not attend. The applicant also confirmed that he had a recording of the Tribunal hearing that he did not produce in evidence in support of his application for judicial review.
5. The applicant then claimed that he tried to obtain copies of his medical records and a report from his treating psychiatrist for the purpose of the hearing before the Court, but could not do so because more than seven years had passed since the records were made. He also claimed that he asked for copies of the records when he first applied to the Court for judicial review in 2019, but his agent could not provide them to him. He did not put any of this in affidavit because he did not know how to.
6. The applicant then offered to try and get records from his General Practitioner if possible. The applicant could not otherwise identify any error in the Decision, save that he sought an adjournment from the Tribunal to provide medical records but that was refused.

1. Ms Stone on behalf of the Minister relied on an outline of written submissions dated 2 October 2025 and a list of authorities dated 9 October 2025. Those submissions responded to the grounds of review identified in the application for judicial review. Put simply, because the applicant conceded that he was not enrolled in a course of study and had not been enrolled in a course since 4 December 2016, there was no jurisdictional error by the Tribunal in affirming the delegate's decision to cancel the visa.
2. In relation to each ground, the applicant was either seeking merits review of the Decision or expressing dissatisfaction at the weight given by the Tribunal to the applicant's evidence.
3. In relation to the new grounds raised by the applicant, Ms Stone submitted that there was no evidence of any fraud or misconduct by any agent retained by the applicant and there was no record of an agent acting for the applicant in his application to the Tribunal. Further documents of the kind that the applicant claims were lost or missing were provided to the Tribunal, including CoEs, a certificate of completion of the diploma course and the referral letter from the applicant's General Practitioner. Ms Stone also referred to the Decision at CB 83 [4] where the Tribunal recorded that the applicant was asked if he had any medical evidence or report to support any medical reason why he was not in a condition to contact his course provider and the applicant said he did not.
4. In relation to the applicant's submission that he requested an adjournment to provide further medical evidence to the Tribunal, Ms Stone offered to produce the recording of the Tribunal hearing for the assistance of the Court. A recording was obtained from the Tribunal's records and played in open court. The recording was tendered and marked as an exhibit.
5. That recording did not disclose any request for an adjournment. The recording disclosed that when asked if he had any medical certificate to support his claim that he suffered from depression or anxiety, the applicant said, 'I can probably provide'. He also said, 'at one time I went to see a psychiatrist as well'. When asked if he had any evidence of that, he said, 'not at the moment'. The Tribunal member said that 'today is the day' and 'this is your case'. However, there was no request for more time and no evidence given of an inability to obtain evidence or that his agent had all of his records and had disappeared with them. The applicant's claims that he asked for an adjournment was simply not supported by the recording. The recording also records that the Tribunal member asked the applicant about the referral letter produced to the delegate and asked the applicant to explain that document. When asked directly if he had any evidence of attending a psychiatrist, the applicant replied, 'not at this stage but I can provide'. The Tribunal member responded, 'this is the day'. The Tribunal member noted that the referral letter was in May 2018. It did not explain why the applicant was not enrolled in a course of study since December 2016.
6. Ms Stone submitted that the Tribunal was not required to record in writing any decision to refuse an adjournment and there was no clear request to adjourn to produce further evidence. The Tribunal member made plain that the applicant was required to provide relevant documents to the Tribunal before or at the hearing, and the applicant failed to do so. The reasons given for not allowing the applicant a further indulgence to produce evidence were clear, and there was no evidence that the applicant in fact attended a psychiatrist as a result of the referral or that his condition was the reason for him not studying the bachelor's degree course from 2016 onward. It was also unclear if the applicant's condition was such as to preclude him from studying at all. Further, no explanation was given by the applicant to the Tribunal as to why he did not have the records or reports with him for the purposes of the hearing.

1. In reply, the applicant claimed that his agent 'got every certificate of mine...like original medical certificate...but he just vanished'. When it was put to the applicant that he did not tell the Tribunal that he could get a copy of the certificates or report from his agent but rather, he said he did not have any documents but could get them, the applicant replied that he did not know his agent had taken off with the documents at that time. When asked what the report from his psychiatrist said, the applicant claimed that it recorded how many times he saw the psychiatrist and why he didn't go to college. The applicant then offered to try and obtain a copy of the report from the medical centre. He then claimed that he had asked but was told that they did not keep a copy because it was more than seven years ago. The applicant offered to find the psychiatrist and 'maybe he has it in his record'.
2. The applicant agreed that he did not seek to obtain medical records or a report immediately after the hearing on 24 June 2019 and before the Decision on 1 August 2019. Nor did the applicant seek any report or record at the time of commencing his application for judicial review in August 2019 or at any time thereafter. The applicant claimed that he did not know who to ask or what to do or where to provide documents.
3. The Court then offered the applicant an opportunity to try and obtain a copy of a report or any record of his treatment by a psychiatrist that may have been relevant to the Decision. The Court ordered that:

By 4:00pm on Friday 14 November 2025, the applicant is to file and serve any further evidence regarding the referral letter dated 28 May 2018 from the applicant's general practitioner to the psychiatrist named therein which letter appears at Court Book page 18 and any evidence of any psychiatrist report obtained or alternatively, an explanation as to why any records no longer exist. The applicant may file such evidence by sending it by email to chambers at associate.judgecorbett@fcfcoa.gov.au.

1. In response to the opportunity to provide further evidence, the applicant sent an email to chambers on 14 November 2025. It was as follows:

Dear Court Officer,

I refer to the Court's order dated 16 October 2025 requesting that I file and serve further evidence regarding the referral letter dated 28 May 2018 (Court Book page 18) from my general practitioner to a psychiatrist.

I have made genuine efforts to obtain any psychiatric records following that referral. These steps include:

Emailing Bacchus Marsh Medical Centre on 11 November 2025; and

Personally attending the clinic in person.

I received a written response from the clinic (attached), confirming that Dr Singh only rented rooms at the practice, and due to legal protocols, the clinic cannot release any letters or records they may have received from him. I was advised to contact Dr Singh directly.

Despite further attempts, I have been unable to locate Dr Singh or confirm whether he is still practising in Australia or may now be overseas.

I respectfully submit that this situation is entirely beyond my control and not due to any fault of my own. I have taken all reasonable steps to comply with the Court's direction, but I cannot obtain records that are no longer held by the clinic and for a practitioner whose current location is unknown.

This has placed me in the same difficult loop I experienced previously - attempting to access help and documentation, but facing barriers outside my control.

I therefore provide this explanation, together with the attached correspondence, as my response to the Court's order. I remain willing to supply any further information if required

1. Attached to the email was the following email correspondence:

1. It is immediately apparent that no inquiry was made of Dr Singh directly for any report or record. Further, there was no suggestion that documents were destroyed after seven years. The applicant does not appear to have explained to the Baccus Marsh Medical Centre why the records were sought. No inquiry appears to have been made of the Barkley Square Medical Centre or Dr Singh Rawal. No report as to the applicant's anxiety or depression was forthcoming in response to the orders made or to substantiate the applicant's claim that there was a report that could have been produced to the Tribunal if an opportunity to do so had been given. Further, no adequate explanation has been given on oath or affirmation as to why medical records relating to the applicant no longer exist and cannot be produced.
2. The applicant's explanation as to what occurred before the Tribunal and the whereabouts of his medical records is not persuasive. It is contradictory and lacks credibility. The recording of the hearing reveals a different version of events to that recalled by the applicant in his submissions, and there remains no evidence of why the applicant was able to produce to the Tribunal some of the documents which he said were given to his agent and subsequently taken by or lost to his agent, such as his police records and CoEs, but did not include a report from his treating psychiatrist which was a highly relevant document which purportedly explained why he was unable to complete his course of study. The explanation that the records were not available because they were destroyed by the medical practices after seven years lacks credibility, especially when the applicant appears to have been referred to a psychiatrist in May 2018 and the hearing before the Tribunal was in June 2019. There was also no credible evidence of why the applicant did not immediately seek the records or consult his agent after the hearing on 24 June 2019, and before the Tribunal made the Decision. As the Tribunal observed in the Decision, the applicant' evidence as to why he did not undertake the bachelor degree course was 'unclear'. So too was his explanation to this Court as to what occurred at the hearing before the Tribunal and the whereabouts of his important medical information.
3. Pursuant to the Court's overriding duty to ensure a fair trial to unrepresented litigants, the applicant was given the opportunity to verify his claims and present further evidence (AYJ22 v Minister for Immigration and Multicultural Affairs [2025] FCA 510 at [24] per Hill J; Wahed v Minister for Home Affairs [2019] FCA 247 at [26] per Moshinsky J and MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [100] per Mortimer J).
4. In any event, the existence of further medical records or the existence of a report from the applicant's psychiatrist does not displace the obligation of the applicant to establish that a material jurisdictional error occurred in making the Decision or refusing to grant an adjournment of the hearing (see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [9]).

1. At the hearing before this Court, the applicant did not seek to rely on any of the grounds of review in his application for judicial review. However, each of those grounds is without merit and does not establish a material jurisdictional error.
2. Ground one is misconceived; the Tribunal did consider but rejected the applicant's claim that his ability to study and undertake the course in which he was enrolled, but which was cancelled by the course provider for non-attendance, was due to his ongoing criminal proceeding and police investigation. The Tribunal found that the applicant's evidence was unclear but considered his claims when considering circumstances relevant to the exercise of the discretion not to cancel the visa (CB 81-2). To the extent that the applicant disagrees with the Tribunal's finding, the applicant seeks impermissible merits review of the Decision and does not identify jurisdictional error.
3. Ground two is also misconceived, the Tribunal did consider the applicant's mental state (CB 83) but was not persuaded that it was an adequate explanation or a compelling reason to exercise the discretion not to cancel. The Tribunal was not persuaded that the applicant's mental health was a reason not to undertake a course of study and therefore, this was not persuasive when weighing whether to exercise the discretion. This was a finding that was reasonably open to the Tribunal. However, there was no failure by the Tribunal to consider a material fact or claim.
4. Ground three is vague and unclear, but the Tribunal did consider the applicant's study history and the other discretion factors identified in PAM3 when considering whether to affirm the delegate's decision (CB 82-4). The recording of the hearing before the Tribunal also disclosed that the applicant's evidence was often evasive and confusing. The Tribunal did consider the impact that cancellation may have on the applicant including financial hardship, disappointment and embarrassment. The Tribunal also considered the legal consequences of cancellation (CB 85). Each of the grounds of review in the application for judicial review must be dismissed.
5. At the hearing before this Court, the applicant sought to rely on an unreasonable rejection of a request for an adjournment as the basis upon which the Court should find jurisdictional error. This too is rejected.
6. Firstly, there was no clear request for an adjournment by the applicant. At best, the applicant said he may be able to obtain further evidence about his medical condition if given more time. To the extent that this could be or should have been inferred to be a request for an adjournment the rejection by the Tribunal of a further indulgence was not unreasonable in the circumstances and was not a decision that no rational or logical decision maker could arrive at on the same evidence (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130] per Crennan and Bell J).
7. In Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26], the Court said:

A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute [Li at [63]], including an implication of the required threshold of unreasonableness, which is usually high [SZVFW at [11], [52], [89], [135]]. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised [ABT17 at [101]]. It is not to be assessed through the lens of procedural fairness to the applicant [Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at 491 [67]. See BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091 at 1099 [34]; 373 ALR 196 at 204-205]. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power" [Li at [76]].

1. Here with the benefit of the recording of the Tribunal hearing it could not be said that the power or discretion not to adjourn was in the circumstances was unreasonable. The applicant was given an invitation to present further evidence at the hearing but he did not bring with him to the hearing relevant medical evidence or credibly explain to the Tribunal why he had been unable to provide that evidence. There was also no clear request for further time nor any adequate explanation of why the evidence was not available or sought for the hearing. It was open for the Tribunal to find that there was no evidence of the applicant being unable to study due to his pending criminal prosecution or that he suffered a medical or mental health condition that prevented him from enrolling in a course of study or from maintaining his enrolment. The Tribunal did consider the referral letter but was not satisfied on that evidence alone that the discretion should be exercised in favour of the applicant.
2. The Court has also scrutinised the materials before the Tribunal, the recording of the hearing before the Tribunal and the Decision to identify any jurisdictional error, noting the Court's obligations as outlined in MZAIB V Minister for Immigration and Border Protection [2015] FCA 1392 at [58], [77], [100] and [112]-[114]. No jurisdictional error is found. This included whether the Decision itself was unreasonable in the circumstances. 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. An order will be made to that effect.

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 $5,400.00, which is less than the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 3, Item 3 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules). That sum is fair and reasonable and an order that the applicant pay that amount will be made.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.