Singh v Minister for Immigration and Citizenship [2026] FedCFamC2G 244

If you wish to provide material or written arguments for us to consider, you should do so as soon as possible. In providing personal/sensitive information to us you are consenting to the collection and use of that information for purposes under the Migration Act. We will collect personal/sensitive information about you and all applicants involved, if any, during the review. We will not issue a separate privacy notice on each instance of collecting/using such information.

1. On 1 August 2019, the Tribunal invited the applicant (through his nominated representative and pursuant to s 359 of the Act) to provide information in support of his review application by no later than 15 August 2019 (the "Tribunal's invitation letter") (CB 67-75). In particular, the Tribunal's invitation letter stated (CB 69):

As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

• enrolled in a registered course of study; and

• a genuine applicant for entry and stay as a student.

Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking 'Submit' on the Declaration page.

1. On 15 August 2019, the applicant's nominated representative wrote to the Tribunal (via email) to advise that they were no longer representing the applicant and asking that all future correspondence be sent to the applicant directly (CB 76-77).
2. On 16 August 2019, the applicant wrote to the Tribunal (via email) providing updated contact details and a letter of enrolment from the Skills Institute Australia dated 16 August 2019 (the "enrolment letter") (CB 78-80).
3. The enrolment letter relevantly stated as follows (CB 80):

To Whom It May Concern

We are pleased to advise that the following student is/was enrolled at Skills Institute Australia.

...

Course name AUR31516 Certificate III in Automotive Diesel Engine Technology

Start date 15/04/2019

End date 13/10/2019

...

1. On 19 August 2019, the applicant gave the Tribunal a completed Change of Contact Details form (via email) (CB 81-83).
2. On 3 September 2019, the Tribunal affirmed the delegate's decision refusing to grant the applicant the visa (CB 87-90).
3. On 6 October 2019, the applicant applied to the then Federal Circuit Court of Australia (the "FCCA") for judicial review of the Tribunal's decision (CB 1-5). The applicant provided an affidavit in support of that application (affirmed by him on 4 October 2019) (CB 6-8) (the "applicant's affidavit"). The applicant's affidavit annexed a copy of the Tribunal's decision, together with the associated notification letter and information sheet.

1. The application for judicial review was brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus helpful to outline the Tribunal's decision in some detail.
2. The Tribunal's decision is four pages long and spans 19 paragraphs (CB 87-90).
3. The Tribunal began by identifying that the applicant had applied for the visa on 15 May 2018 and that, on 19 June 2018, a delegate of the Minister had refused to grant the applicant that visa because they found that the applicant did not intend to stay in Australia temporarily (at [1]-[3]).
4. The Tribunal noted that it had invited the applicant (pursuant to s 359 of the Act) to provide information in relation to his course of study and his entry and stay in Australia as a student (in writing). The Tribunal confirmed that the invitation had informed the applicant that if the information was not provided by the specified date, he would lose any entitlement he might otherwise have had to appear before the Tribunal at a hearing. The Tribunal explained that no information was provided and no extension of time within which to provide information was sought and, as such, the applicant had no entitlement to attend a Tribunal hearing (at [4]-[6]).
5. The Tribunal considered whether it should adjourn the review (pursuant to s 363(1)(b) of the Act) to allow the applicant more time to provide further evidence in support of his application. The Tribunal noted that it was for the applicant to "satisfy the Tribunal that the requirements of the Act" and Migration Regulations 1994 (Cth) (the "Regulations") had been met, found that the applicant had been given a "fair opportunity to provide relevant information" and proceeded to make its decision based on the information before it (at [8]-[11]).
6. The Tribunal then set out the criteria for the grant of the visa, noting that the requirements set out in cll 500.211 to 500.218 in Schedule 2 of the Regulations needed to be satisfied. The Tribunal detailed that cl 500.211 in Schedule 2 of the Regulations required that, at the time of the Tribunal's decision, the applicant was enrolled in a registered course of study (and outlined the relevant definitions in that regard) (at [13]-[15]).
7. The Tribunal continued:
   1. Outside the prescribed period, the Tribunal received from the applicant, a copy of a letter dated 16 August 2019 from Skills Institute Australia addressed To Whom It May Concern. The operative part of the letter stated "We are pleased to advise that the following student is/was enrolled at Skills Institute Australia." The letter named the applicant, a course name AUR31516 Certificate III in Automotive Diesel Engine and a start date of 15 April 2019, and an end date of 13 October 2019. The Tribunal does not regard this letter as being satisfactory evidence of enrolment in view of the use of the language "is/was". The Tribunal therefore rejects this evidence. The Tribunal would have thought that if the applicant held a Confirmation of Enrolment the simple and obvious way to establish this would be to provide a copy to the Tribunal.
   2. There is no satisfactory evidence before the Tribunal that the applicant is currently enrolled in a course of study. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.
8. The Tribunal ultimately found that the applicant did not meet the visa criteria and affirmed the delegate's decision refusing to grant the applicant the visa (at [18]-[19]).

1. The application for judicial review (filed by the applicant in then FCCA on 6 October 2019) contained three "grounds of review" as follows (without alteration) (CB 4):
   1. I, Gurlal Singh, a resident of [address omitted]. I am a citizen of India, currently living in Australia on temporary basis as an International student. I lodged a student visa application in May 2018 to extend my stay which was later refused by the department.
   2. I firmly believe that the tribunal member has made a jurisdictional error by not considering the factual evidence provided in response of the application and made a wrong decision.
   3. I am seeking justice from the Honourable Federal Circuit Court as I believe that the tribunal did not consider the information provided adequately and made a jurisdiction error in the decision. I provided a letter from the institute regarding my confirmation of enrolment which was ignored by the tribunal and therefore firmly believe that the relevant information provided by me was not considered correctly in order to establish my circumstances not to refuse my student visa application. Therefore, I am seeking judicial review of the application and request Honourable Federal Circuit Court to review and consider my file for justice.
2. On 24 March 2025, procedural orders were made by Registrar Lindsay of this Court giving the applicant an opportunity to file an amended application, any further evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
3. The applicant appeared before this Court by telephone on 18 February 2026. He did so without legal representation. Mr Adrian Downie from the Australian Government Solicitor appeared on behalf of the Minister by telephone. The Court asked the applicant to confirm that he had received copies of the CB and the Minister's written submissions.
4. The materials before the Court include the application for judicial review and the applicant's affidavit, both filed by the applicant on 6 October 2019 (the applicant's affidavit being taken as read and in evidence at the hearing on 18 February 2026), a CB numbering 90 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 15 April 2025 and the affidavit of service of Ms Paige Elise Durham filed on 16 April 2025 (also taken as read and in evidence at the hearing of this matter).
5. Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal "did wrong". This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
6. To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. It was also explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

(a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24; (2005) 228 CLR 294 at [207]- [208];

(e) where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

(f) where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].

1. It was also explained that this Court cannot review the merits of the Tribunal's decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
2. Against this background, the applicant told the Court that when he applied for the visa, he was studying and, on that basis, his visa should not have been "cancelled". Those comments essentially reflect the concerns raised by the applicant in his judicial review application and will be addressed by the Court below.

1. As set out above, the applicant raised three "grounds of review" in his application for judicial review. Those grounds essentially argue that the Tribunal failed to properly consider information before it in the form of the enrolment letter.
2. This claim fails on a factual level.
3. As outlined by the Court above, on 16 August 2019, the applicant wrote to the Tribunal (via email) and provided the Tribunal with the enrolment letter (dated 16 August 2019). That enrolment letter relevantly stated as follows (CB 80):

To Whom It May Concern

We are pleased to advise that the following student is/was enrolled at Skills Institute Australia.

...

Course name AUR31516 Certificate III in Automotive Diesel Engine Technology

Start date 15/04/2019

End date 13/10/2019

...

1. The Tribunal expressly considered the enrolment letter in its written reasons as follows (emphasis added) (CB 89-90):
   1. Outside the prescribed period, the Tribunal received from the applicant, a copy of a letter dated 16 August 2019 from Skills Institute Australia addressed To Whom It May Concern. The operative part of the letter stated "We are pleased to advise that the following student is/was enrolled at Skills Institute Australia." The letter named the applicant, a course name AUR31516 Certificate III in Automotive Diesel Engine and a start date of 15 April 2019, and an end date of 13 October 2019. The Tribunal does not regard this letter as being satisfactory evidence of enrolment in view of the use of the language "is/was". The Tribunal therefore rejects this evidence. The Tribunal would have thought that if the applicant held a Confirmation of Enrolment the simple and obvious way to establish this would be to provide a copy to the Tribunal.
2. As can be seen from the extract above, the Tribunal had regard to the enrolment letter provided by the applicant but rejected the evidence. In particular, the Tribunal found that the enrolment letter was not "satisfactory evidence of enrolment in view of the use of the language "is/was"". The Tribunal also stated that, if the applicant was enrolled in a course of study, he simply would have provided the Tribunal with a COE.
3. The Court is satisfied that the Tribunal had regard to the enrolment letter provided by the applicant.
4. No jurisdictional error arises in this regard.
5. The issue of whether the Tribunal was required to seek further information from the applicant in this regard will be addressed by the Court below.

1. As outlined above (in relation to the applicant's grounds of review), the Tribunal considered (and rejected) evidence provided by the applicant in relation to the applicant's enrolment in a registered course of study (being the enrolment letter).
2. In his affidavit (filed in support of his judicial review application), the applicant stated that the Tribunal "could have checked [his] enrolment status online in the department system" but it did not do so. Further, the applicant claimed that the Tribunal "did not contact [him]" to ask him to provide a COE (CB 8 at [7]).
3. The Court notes that it has a duty to the applicant as an unrepresented litigant. In fulfilling that duty, the Court will ordinarily review the Tribunal's decision itself and remain astute and alert to the possibility of jurisdictional error in the Tribunal's decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391.
4. In the circumstances of this case, the Court will thus consider whether the Tribunal was required to seek further information from the applicant in relation to his enrolment status and if failure to do so amounted to jurisdictional error on the part of the Tribunal.
5. It is well established that a proceeding before the Tribunal is inquisitorial in nature and that the duty imposed on the Tribunal is a duty to conduct a review: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 ("SZIAI") at [18]. Whilst the Tribunal has discretionary powers (under the Act) to obtain information, it does not have a general duty to make its own enquiries: Minister for Immigration & Citizenship v SZGUR & Anor [2011] HCA 1 at [1] & [20] and Minister for Immigration, Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43]. The Tribunal is also not required to make an applicant's case for them: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.
6. The Court notes, however, that, in some circumstances, a failure to make an obvious inquiry about a critical fact may be legally unreasonable or may constitute a failure to exercise jurisdiction or conduct a review: SZIAI & Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 317 at [67].
7. The High Court provided a useful summary of the relevant jurisprudence in Wei v Minister for Immigration and Border Protection [2015] HCA 51, highlighting as follows (footnotes omitted):
   1. ...In Prasad v Minister for Immigration and Ethnic Affairs, Wilcox J held that, although it is not enough to establish jurisdictional error on the part of an administrative decision‑maker that the court may consider that the sounder course for the decision‑maker would have been to make further inquiries, where it is obvious that material is readily available which is centrally relevant to the decision to be made, and the decision‑maker proceeds to make the decision without obtaining that information, the decision may be regarded as so unreasonable as to be beyond jurisdiction. In Ex parte Helena Valley/Boya Association (Inc), Ipp J, sitting as a member of the Full Court of the Supreme Court of Western Australia, applied Wilcox J's reasoning in Prasad in order to conclude that a local council had failed properly to apply its mind to the question which needed to be decided in determining whether to approve a planning application. In Minister for Immigration and Ethnic Affairs v Teoh, Mason CJ and Deane J expressly approved of Wilcox J's reasoning in Prasad and of its application in appropriate cases. And in Minister for Immigration and Citizenship v Le, Kenny J surveyed the course of authority following Prasad and held that it was legally unreasonable for the Migration Review Tribunal to fail to make an obvious inquiry. Based on those decisions, in Minister for Immigration and Citizenship v SZIAI, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ similarly concluded that there may be circumstances in which a merits reviewer's failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can be seen to supply a sufficient link to the outcome of review to constitute a constructive failure to exercise jurisdiction.
8. SZIAI established that there are three considerations which must be met in order to determine whether a duty to inquire exists (see also MZABA v Minister for Immigration and Border Protection [2015] FCA 711 at [61], citing SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403 at [21] & SZIAI):

(a) whether the inquiry that the Tribunal failed to make was an obvious enquiry;

(b) whether it concerned a critical fact, the existence of which was easily ascertained; and

(c) whether it supplied a sufficient link to the outcome to constitute a failure to review.

1. The Court also notes more recent comments by the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, as follows (footnotes omitted):
   1. The making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.
2. In order to be granted the visa, the applicant in the present matter was required to meet the criteria set out in cll 500.211 to 500.218 in Schedule 2 of the Regulations. Of particular importance in this matter is cl 500.211 in Schedule 2 of the Regulations.
3. At the time of the Tribunal's decision (being as at 3 September 2019), that clause relevantly provided as follows:

One of the following applies:

(a) the applicant is enrolled in a course of study;

(b) if the application is made in Australia - the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;

(c) if the applicant is a Foreign Affairs student - the applicant has the support of the Foreign Minister for the grant of the visa;

(d) if the applicant is a Defence student - the applicant has the support of the Defence Minister for the grant of the visa.

1. The applicant's enrolment in a course of study was thus a critical fact in the applicant's matter (as required by cl 500.211(a) in Schedule 2 of the Regulations, set out above).
2. In this matter, the Tribunal invited the applicant (through his nominated representative and pursuant to s 359 of the Act) to provide information in support of his review application by no later than 15 August 2019 by way of the Tribunal's invitation letter (CB 67-75). The Court notes that the Tribunal's invitation letter stated (CB 69):

As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

• enrolled in a registered course of study; and

• a genuine applicant for entry and stay as a student.

Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking 'Submit' on the Declaration page.

1. Nowhere in that letter was the applicant informed that he was required to provide the Tribunal with a current COE in order to satisfy the Tribunal that he was enrolled in a course of study. It simply stated that a requirement for the grant of the visa was that the applicant "be enrolled in a registered course of study" and the applicant was invited to provide "all relevant information about the course(s) of study" that he was undertaking.
2. On 15 August 2019 (being the final day for the applicant to provide information to the Tribunal), the applicant's nominated representative notified the Tribunal that they were no longer representing the applicant and asked that all future correspondence be sent to the applicant directly (CB 76-77).
3. The following day (being on 16 August 2019), the applicant provided the Tribunal with updated contact details and the enrolment letter (dated 16 August 2019) (CB 78-80). As detailed above, the enrolment letter relevantly stated (CB 80):

To Whom It May Concern

We are pleased to advise that the following student is/was enrolled at Skills Institute Australia.

...

Course name AUR31516 Certificate III in Automotive Diesel Engine Technology

Start date 15/04/2019

End date 13/10/2019

...

1. Arguably, by providing the enrolment letter, the applicant considered that he had provided sufficient information to satisfy the Tribunal of his enrolment in a course of study. This is further evidenced by the applicant's concerns raised in his judicial review application, the applicant's affidavit and his oral submissions before this Court.
2. The Tribunal, however, did not regard the enrolment letter as "satisfactory evidence of enrolment in view of the use of the language "is/was"" (CB 89 at [16]).
3. The critical fact in this matter was whether the applicant was enrolled in a course of study at the time of the Tribunal's decision. The evidence that went to that critical fact was the enrolment letter and the Tribunal took issue with the language contained in that enrolment letter.
4. The Court considers that it would have been straight forward for the Tribunal to ascertain whether the applicant was currently enrolled by either seeking that information from him or by contacting the applicant's education provider to confirm the contents of the enrolment letter. The Tribunal did not do so.
5. The Court also notes that:

(a) the applicant's nominated representative came off the record on the final day the applicant was able to provide information to the Tribunal;

(b) the applicant provided the enrolment letter to the Tribunal the day after his nominated representative came off the record (resulting in the applicant losing his entitlement to attend a Tribunal hearing);

(c) the Tribunal had the power to request further information from the applicant pursuant to s 359 of the Act but did not do so;

(d) the Tribunal was not required to make its decision within in specified period of time; and

(e) there had already been a considerable delay between the applicant filing his review application (being on 2 July 2018) and the Tribunal making its decision (being on 3 September 2019).

1. Context matters. When that proposition was put to counsel for the Minister, counsel pressed the Minister's point that the Tribunal did all that it was required to do in the context of this case.
2. The Court disagrees.
3. In the circumstances of this matter, where the applicant had provided what he obviously considered to be confirmation of enrolment to the Tribunal (immediately following his nominated representative coming off the record) and, where the Tribunal was concerned about the use of the language contained in that letter, the Court concludes that it was unreasonable for the Tribunal to fail to provide the applicant with an opportunity to provide further information relating to his course enrolment. This is particularly so where the applicant's nominated representative came off the record at the end of the time period within which the applicant could have provided information and the applicant lost his entitlement to attend a Tribunal hearing (at which time he might have been able to allay any concerns the Tribunal had with the enrolment letter or otherwise provide further evidence in that regard).
4. The High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 ("LPDT") explained that the appropriate test for considering whether an error is material is "whether the decision that was in fact made could, not would, 'realistically' have been different had there been no error": LPDT at [14] (emphasis in original).
5. The High Court also explained as follows in relation to judicial review cases (footnotes omitted):
   1. What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
   2. In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion)
6. The error in this matter was material. Had the Tribunal made what the Court considers were obvious inquiries (either of the applicant or the applicant's educational institute) about the critical fact of the applicant's course enrolment, the outcome in this case could realistically have been quite different: LPDT at [14].
7. Jurisdictional error on the part of the Tribunal has been identified.

1. For the reasons outlined above, the applicant's affidavit and the Court have identified jurisdictional error on the part of the Tribunal.
2. The Tribunal's decision will be set aside and the matter will be remitted to the ART for reconsideration.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.