Singh v Minister for Immigration and Citizenship [2026] FedCFamC2G 476

1. Before the Court is an Amended Application filed on 14 August 2025, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 25 April 2021. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to cancel the applicant's Student (Subclass 500) visa (Visa).

1. The applicant is a citizen of Nepal.
2. The applicant first entered Australia in 2014 on a Higher Education Sector (Subclass 573) visa.
3. On 3 November 2017, the applicant was granted the Visa which was due to expire on 22 May 2020. The applicant was enrolled in a Bachelor of Business (Accounting) (Bachelor of Business) at Polytechnic Institute Australia Pty Ltd (Institute) with a start date of 27 March 2017 and an end date of 22 March 2020 at the time the Visa was granted. The Bachelor of Business was a course that once completed, would provide the applicant with a Level 7 qualification from Australian Qualifications Framework (AQF).
4. On 14 November 2019, the Department of Home Affairs (Department) issued the applicant a "Notice of Intention to Consider Cancellation" (NOICC) of the Visa under s 116(1)(g) of the Migration Act 1958 (Cth) (Act) due to non-compliance with condition 8202(2)(b) of sch 8 of the Migration Regulations 1994 (Cth) (Regulations). Condition 8202(2)(b) required the applicant to be enrolled in a full-time registered course that once completed, would provide the applicant with a qualification that was at the same level as, or higher than, the registered course in which the Visa application was granted, being an AQF Level 7 course. The NOICC informed the applicant that the Provider Registration and International Student Management System (PRISMS) records indicated that on 28 March 2018, the applicant's enrolment in the Bachelor of Business was cancelled as a result of the applicant notifying the Institute of cessation of studies. The PRISMS records also indicated that on 27 September 2019, the applicant enrolled in a Diploma of Information Technology which, once completed, would provide the applicant with a Level 5 qualification from AQF (Diploma). The NOICC notified the applicant that the Diploma in which he was enrolled was an AQF Level 5 which meant that he had not complied with condition 8202. The applicant was given five working days to comment on the grounds for cancellation identified in the NOICC, and to provide reasons as to why the Visa should not be cancelled.
5. On 20 November 2019, the applicant appointed a migration agent who emailed the Department requesting an extension of time in which to provide a response to the NOICC, which was granted on 21 November 2019. The applicant was given a further five working days to provide a response to the NOICC.
6. On 27 November 2019, the applicant's migration agent emailed the Department and attached a written response signed by the applicant with a number of supporting documents (NOICC Response). The NOICC Response provided, in summary, the following reasons as to why the applicant's Visa should not be cancelled:

(1) the applicant suffered an accident and required surgery on his leg during which time he sought a deferral from his studies which was denied;

(2) his mother became ill, resulting in him experiencing depression and again he sought a deferral of his studies, which was also denied;

(3) his mother passed away causing him to return to Nepal; and

(4) the applicant moved to various education providers at different times who were better equipped to support him in circumstances where he required flexibility to return to Nepal.

1. In the NOICC Response, the applicant wrote the following (without amendment):

...

Due to my emotional condition at the moment, stress and pressure I was going through I could not think well about my decision. As, I had my VISA granted for Bachelor Degree I shouldn't have joined any VET courses as that would lead to cancellation of my VISA. But my circumstances were miserable, and I really did not have any other choice.

...

1. On 10 December 2019, the applicant's migration agent emailed the Department advising that they had ceased acting on behalf of the applicant.
2. On 17 December 2019, the Delegate cancelled the Visa under s 116(1)(g) of the Act. The Delegate found a ground for cancellation existed as the applicant had not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his Visa was granted and therefore was in breach of condition 8202(2)(b) of the Visa. The Delegate was satisfied that the reasons for cancelling the Visa outweighed the reasons for not cancelling.
3. On 17 December 2019, the applicant applied to the Tribunal for review of the Delegate's decision.
4. On 2 June 2020, the Tribunal emailed the applicant inviting the applicant to attend a hearing at 12.30pm on 25 June 2020 to be conducted via telephone as a result of the COVID-19 pandemic.
5. On 18 June 2020, the applicant emailed the Tribunal attaching a number of supporting documents including confirmations of enrolment for courses that the applicant had previously been enrolled in, English language tests, medical evidence and other documentation that confirmed his familial relationships. The applicant also attached further written submissions that largely mirrored what was put to the Department in the NOICC Response.
6. On 19 June 2020, the applicant emailed the Tribunal and attached a further Confirmation of Enrolment Letter for the Diploma confirming his current enrolment at the time.
7. On 25 June 2020, the applicant appeared at the hearing before the Tribunal and gave evidence.
8. On 15 December 2020, the Tribunal emailed the applicant seeking that any additional information he wanted the Tribunal to consider be provided by 18 December 2020. The applicant did not respond or provide any further information.
9. On 25 April 2021, the Tribunal affirmed the Delegate's decision to cancel the applicant's Visa. On 26 April 2021, The Tribunal sent a copy of its decision and reasons to the applicant.

1. The Tribunal issued its statement of decision and reasons on 25 April 2021 (Tribunal Decision).
2. At paragraphs [1] - [5] of the Tribunal Decision, the Tribunal summarised the application before it and noted the procedural background of the matter.
3. At paragraphs [6] of the Tribunal Decision, the Tribunal noted that the issue before it was whether the applicant, as a holder of a student visa, had breached condition 8202 of sch 8 to the Regulations.
4. At paragraphs [8] - [11] of the Tribunal Decision, the Tribunal summarised the evidence before it, including the history of the applicant's enrolments and cancellations.
5. At paragraphs [12] - [13] of the Tribunal Decision, the Tribunal considered whether the applicant complied with condition 8202(2) of the Regulations and found that he had not as he was not enrolled in a full-time registered course at an AQF level of the registered course for which his Visa application was granted as required by condition 8202(2)(a) and (b) of the Regulations.
6. At paragraphs [14] - [24] of the Tribunal Decision, the Tribunal, having found that the applicant had not complied with a condition of the Visa, considered whether to exercise its discretion to cancel the Visa. The Tribunal went on to consider the purpose of the applicant's travel and stay in Australia and his need to remain in Australia, the extent of the applicant's compliance with the Visa conditions and the degree of financial, psychological, emotional or other hardships that may be caused in the event that the applicant's Visa is cancelled. The Tribunal made a number of findings including that:

(a) the applicant had not maintained enrolment or studied at AQF Level 7 or higher and while the Tribunal acknowledged the death of his mother, his health problems and additional stress, the Tribunal found that the applicant had not resided in Australia for the purpose in which the Visa was granted, being to study at a registered bachelor degree or higher;

(b) the applicant became non-compliant with condition 8202(2) of the Regulations only a matter of months after the Visa was granted for a period of three years which the Tribunal considered to be a serious non-compliance; and

(c) the Tribunal accepted that the applicant had made attempts to be in a position to apply and gain entry to a bachelor degree and that he would be financially out of pocket for fees he had paid to date, that he has had mental and physical struggles and stresses in his life including as a result of his mother's passing but noted that these factors could only be given minimal positive weight in the circumstances.

1. At paragraphs [25] - [31] of the Tribunal Decision, the Tribunal considered the circumstances in which the cancellation arose, notably, the Tribunal made the following findings:

(a) it accepted that the applicant suffered a finger injury but did not consider it plausible that such an injury would preclude him from studying if he was motivated to do so, nor would a two-week absence be the substantial cause of the enrolment cancellation;

(b) the applicant did not undertake study at an AQF Level 7 for a period of 18 months, though it acknowledged his enrolment in the lower-level VET course;

(c) the Tribunal considered it not insignificant that the applicant confirmed, in writing, in the NOICC Response that he was aware of the nature of condition 8202 and knew that he needed to maintain enrolment at least in a bachelor degree (or higher) while he held the Visa and that despite this knowledge, the applicant ceased enrolment in the Bachelor of Business on 28 March 2018 and enrolled in a lower level VET course without taking any steps to report the change in his circumstances to the Department until he sent the NOICC Response on 28 November 2019;

(d) the applicant was formally put on notice in September 2019 when he enrolled in another VET course while holding the Visa;

(e) it was satisfied that the applicant indicated that he was aware of condition 8202(2) relating to his Visa, that he knew he had not been compliant with that condition since 28 March 2018 and that he was aware of the consequences of non-compliance; and

(f) the Tribunal acknowledged that the applicant had personal, family and health issues but was not persuaded that it was beyond the applicant's control to mitigate against the cancellation of his Visa.

1. At paragraph [32] of the Tribunal Decision, the Tribunal found that there was no information before it to indicate that the applicant had been uncooperative or unresponsive in his dealings with the Department.
2. At paragraphs [33] - [36] of the Tribunal Decision, the Tribunal considered any effects or consequences that would flow from the Visa cancellation including any consequential cancellations under s 140 of the Act, of which there are no dependents, any mandatory legal consequences, of which it acknowledged that the applicant would be required to depart Australia and any international obligations, of which there was no claim made by the applicant. The Tribunal subsequently found, considering the circumstances as a whole, that the applicant's Visa should be cancelled.
3. At paragraph [37] of the Tribunal Decision, the Tribunal affirmed the decision of the Delegate to cancel the applicant's Visa.

1. The applicant applied for judicial review of the Tribunal Decision on 31 May 2021 and filed an Amended Application on 14 August 2025. The Amended Application contains the following ground for judicial review (without amendment):

The Tribunal failed to comply with section 360 of the Migration Act 1958 (Cth)

Particulars

The Tribunal failed to put the applicant on notice that an issue in the review was that he had admitted in his response to the NOICC that he was aware that he was non-compliant with his visa conditions at the time of the non-compliance on 29 March 2018 when he enrolled in the lower-level VET course.

1. The hearing took place on 29 January 2026.
2. The applicant was represented by Mr Godwin of Counsel and the Minister was represented by Ms Haag, solicitor, of Mills Oakley.
3. The applicant relied on the following material:

(1) affidavit filed 31 May 2021 annexing a copy of the Tribunal Decision;

(2) affidavit filed 14 August 2025 annexing a copy of the transcript of the Tribunal Decision (Transcript);

(3) affidavit filed 15 August 2025; and

(4) an outline of submissions filed 22 August 2025.

(1) amended Response filed 18 June 2025; and

(2) an outline of submissions filed 16 January 2026.

1. A "privative clause decision" as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal's decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
2. The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [175].

1. The applicant contends that the Tribunal failed to comply with s 360 of the Act by failing to put the applicant on notice that an issue in review was that he had admitted in his response to the NOICC that he was aware that he was non-compliant with his Visa conditions on 29 March 2018 when he enrolled in the lower-level VET course.
2. The relevant principles do not appear to be in dispute.
3. Section 360 of the Act required the Tribunal to invite the applicant "to give evidence and present arguments relating to the issues arising in relation to the decision under review". This requires the Tribunal to give the applicant a sufficient opportunity to give evidence, or make submissions about the determinative issue in review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (SZBEL) at [38] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. With respect to the "issues arising in relation to the decisions under review", the applicant is entitled to assume that the issues the Delegate considered as dispositive, unless some other additional issues are identified by the Tribunal: SZBEL at [35].
4. The Minister concedes that the Tribunal did not expressly put to the applicant that he had admitted in the NOICC Response that he was aware that he was non-compliant with his Visa conditions at the time when he enrolled in the lower-level VET course. However, the Minister submits that no breach of s 360 arises because that the applicant had acknowledged he should not have been enrolled in any VET courses was recorded in the Delegate's decision. The Minister submits, therefore, that to the extent that this is a separate issue in the review, the applicant was taken to be aware of it. The Minister further submits that the Tribunal correctly identified that neither the Act nor the Regulations specify the matters to be taken into account when exercising discretion to cancel a visa, although the Tribunal had regard to the circumstances of the case and the Department's policy guidelines.
5. In oral submissions, the Minister submitted that it was open for the Tribunal to interpret the applicant's statement in the NOICC Response (which is set out in paragraph [41] below) as an admission that the applicant knew at the time he entered into the VET courses that he was breaching his Visa conditions. The Minister also submitted that the Tribunal had regard to all the evidence before it, including the further statement by the applicant to the Tribunal on 12 June 2020 and attached Visa Grant Fact Sheet.
6. The applicant submits that the Delegate's decision simply identifies that the applicant had admitted the non-compliance and that the Delegate did not identify as an issue that the applicant was aware at the time of the non-compliance that he was breaching his Visa conditions. Further, the applicant submits that at paragraphs [28] - [29] of the Tribunal Decision the Tribunal "placed a lot of weight on the fact that the applicant was knowingly non-complaint with his visa conditions" and that the admission in the NOICC Response became dispositive. For the reasons that follow, I accept those submissions.
7. As part of the applicant's response to the NOICC, the applicant stated (without amendment):

...

Due to my emotional condition at the moment, stress and pressure I was going through I could not think well about my decision. As, I had my VISA granted for Bachelor Degree I shouldn't have joined any VET courses as that would lead to cancellation of my VISA. But my circumstances were miserable, and I really did not have any other choice.

...

1. The Delegate's decision, relevantly, provides as follows:

The visa holder acknowledges that he shouldn't have enrolled in any VET courses that would lead to the cancellation of his visa, however claims that here were circumstances beyond his control, resulting in non-compliance.

1. Firstly, I do not consider that on a fair reading the relevant section of the NOICC Response (as set out above) constitutes an admission by the applicant that at the time of ceasing enrolment in the Bachelor of Business degree he knew that he was breaching his Visa conditions; rather it does no more than acknowledge that he shouldn't have enrolled in VET courses as that would lead to the cancellation of his Visa. Whilst this may seem a somewhat fine distinction, it is of significance in light of the Tribunal's findings. It is also of note that the applicant uses the past and conditional tenses, which is inconsistent with an admission as to contemporaneous knowledge as asserted by the Minister. I note, however, that the applicant's first language is not English and give this latter matter limited weight. In addition, of relevance, is that the NOICC Response was provided following receipt by the applicant of the NOICC, which identified that the applicant appeared to have breached his Visa conditions by failing to maintain enrolment in a Bachelor degree level course.
2. Secondly, I consider that the above characterisation of the relevant section of the applicant's NOICC Response to be consistent with the manner in which the Delegate expressed the applicant's response in the NOICC. The Delegate's decision does not provide that the applicant admitted that at the time he enrolled in the VET course he knew he was breaching his Visa conditions.
3. Thirdly, at paragraph [28] - [29] the Tribunal said:

It is not an insignificant matter that the applicant confirmed, in writing, in his NOICC response received by the Department on 28 November 2019, that he was aware of the nature of condition 8202(2) to Schedule 8 of the Regulations and knew that he needed to maintain enrolment at least in a Bachelor (or higher) degree while he held the Subclass 500 visa and, notwithstanding this stated knowledge, he ceased enrolment in the Bachelor degree on 28 March 2018 and enrolled in a lower level VET course without taking any steps to report the change to his circumstances to the Department until he responded to the NOICC in November 2019.

In September 2019, he was formally put on notice, when he enrolled in another VET course while still holding the Subclass 500 visa, that he was aware that he knew his visa was granted for a Bachelor degree and he 'shouldn't have joined any VET courses as that would lead to the cancellation of VISA'. He was knowingly non-compliant with the condition.

1. From the above, it is apparent that the Tribunal considered this issue to be "not insignificant" and found, based on the NOICC Response, not only that the applicant "knew he needed to maintain enrolment in at least a Bachelor (or higher) degree" but also that "notwithstanding this stated knowledge, he ceased enrolment in the Bachelor degree on 28 March 2018 and enrolled in a lower level VET course...". As set out above, I do not consider these findings are supported by the NOICC Response.
2. Fourthly, the transcript of the hearing before the Tribunal is before the Court. At the Tribunal hearing the applicant, relevantly, gave the following evidence:

MEMBER: Now, the issue was that you needed to be studying at a certain level.

APPLICANT: Yes.

MEMBER: And you're aware of that, and that level was a Bachelor degree or higher.

APPLICANT: Okay. Actually, at the time --

MEMBER: Yeah.

APPLICANT: --- I wasn't aware of that kind of thing. But after I've done some research and everything, and I'm aware of that now.

MEMBER: Right. Okay. Good. Okay. And around the time your visa was cancelled, you had provided to the department ---

...

MEMBER: No. Okay. All right. So do you claim that you actually should be granted this visa? And for what reason?

APPLICANT: Actually, the main thing, I have changed my subject from Bachelor to a Diploma was I didn't know that my mother was seriously ill at that time, and while I was studying Bachelor in Politics Institute, I had known that my mother was seriously ill, and I've asked a deferred letter, because I can go back to my country just to visit her at that time, but at that time, my colleagues didn't give mee any kind of deferred letter, and they compelled me to pay tuition fees, and because my family's time was not good at that time, and one day, they left me to change the college, and I have no idea about which (indistinct) should I enrol and there was no one to guide me through that one. So I just thought that dropping the level is only up for me at that time. So that's the main thing I have change my course, like I was totally depressed after hearing the condition of my mother, and that's the only thing.

...

MEMBER: All right. Well, when a visa is cancelled, and this is obviously particular to your case as well here, but when a visa is cancelled, it's a two-step process when I come to look at what the decision to make about it after considering your evidence. Now, the first one is, well, do I think there is a ground for cancellation, which is the first step. Now, what that means is, do I think that you did not meet that condition, and that condition is the one where you needed and still need to be enrolled in a bachelor degree or higher.

APPLICANT: Yeah.

MEMBER: Because that was the reason for the granting of your visa. It was on that basis.

APPLICANT: Yeah.

MEMBER: So I don't think you did comply with that condition so I would be very likely to find that there is a ground to cancel your visa. However, the next thing that I need to consider, and I must do this, is whether there are reasons why the visa shouldn't be cancelled.

APPLICANT: Actually, at that time, I had tried to enrol in bachelor degree, because I had come to my sense that that's the main reason why my visa was cancelled...

...

1. Accordingly, the applicant's evidence before the Tribunal is not consistent with the applicant knowingly breaching his visa conditions at the time he enrolled in the VET course; but rather with him becoming aware when the NOICC was issued and acknowledging that by enrolling in a VET course he had breached his visa conditions and ought not have. I note that this evidence is not referred to in the Tribunal Decision.
2. As to the Minister's oral submissions that the applicant provided other evidence upon which the Tribunal could have concluded that the applicant knew at the time of entering into the lower-level VET courses that he was breaching his Visa conditions, that may be the case. However, that is not what was relied upon by the Tribunal. Paragraphs [28] - [29] of the Tribunal Decision make it clear that the Tribunal's finding that the applicant was knowingly non-compliant was based on the NOICC Response. That matter was not put to the applicant.
3. Accordingly, I accept the applicant's submission that the Tribunal did not adequately put the applicant on notice that a dispositive issue in the review was that he admitted in his NOICC Response that he knowingly failed to comply with his Visa conditions.
4. I therefore find that the Tribunal failed to comply with s 360 of the Act.

1. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT) the majority said:

[7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred...

[14] The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

[15] 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).

1. The Minister made oral submissions that should error be found, it is not material because:

(a) there was significant material before the Tribunal to establish that the applicant had breached the Visa conditions;

(b) the applicant had not been enrolled in a relevant level course since 2018; and

(c) there were a number of other considerations which resulted in the Tribunal affirming the decision to cancel the applicant's visa.

1. I reject those submissions.
2. Firstly, it was not contested before the Tribunal that a ground for cancellation arose. The primary issue before the Tribunal was whether it ought exercise its discretion to cancel the Visa, consequent upon a ground to do so having arisen. Secondly, I consider the remainder of the Minister's submissions invite the Court to engage in merits review. As the High Court said in LPDT at [15], 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.
3. In circumstances where the Tribunal:

(a) was exercising a broad discretion;

(b) found the matter in issue to be "not insignificant"; and

(c) devoted the majority of its consideration to the circumstances in which the cancellation arose (and in that context found that the applicant was knowingly non-compliant and was aware of the consequences of non-compliance),

I consider there is a realistic possibility that the outcome may have been different had the applicant been put on notice that an issue in the review was that he had admitted in the NOICC Response that he was aware at the time of entering into the lower-level VET courses that he was breaching his Visa conditions.

1. Accordingly, I consider that the Tribunal's failure to comply with section 360 was material and jurisdictional error is established.

1. In oral submissions the Minister submitted that even if the Court found material error there was no utility in granting the relief sought by the applicant as the applicant's Visa had expired. I reject that submission and accept the submission of the applicant that notwithstanding the expiry of the Visa, the maintenance of the cancellation decision on the applicant's Departmental file may have an adverse impact on any further visa applications made by the applicant. Accordingly, there is utility in remitting the decision to the Tribunal as it may, upon remittal, determine to quash the cancellation decision.

1. It follows from the above that a writ of certiorari be issued to quash the decision of the second respondent and a writ of mandamus be issued and directed to the Administrative Review Tribunal, requiring it to review the decision according to law.
2. The applicant seeks that the Minister pay their costs in the sum of $9,097.93, being the amount provided for in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (GFL Rules 2025). I note that other than appearance fees for today's hearing, all of the applicant's costs were incurred prior to September 2025 when the GFL Rules 2025 commenced operation. Accordingly, in all the circumstances I consider it appropriate to order the Minister to pay the applicant's costs in the amount of $8,371.30 being the amount provided for in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall so order.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.