Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 519

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 made by the Administrative Appeals Tribunal (Tribunal), on 12 August 2020. By this decision, the Tribunal affirmed a decision made by a delegate (delegate) of the first respondent (Minister) on 14 June 2019 refusing to grant the applicant a Subclass 500 Student (Class TU) visa (student visa).
2. This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
3. For the following reasons, the application is dismissed.

1. The Minister helpfully summarised the background to the matter in written submissions filed on 29 November 2024, which I primarily adopt.
2. The applicant, a male national of India, first arrived in Australia on 16 May 2018 as the holder of a Subclass 600 Visitor (Class FA) visa.[1]
3. On 8 January 2019, the applicant enrolled in a course of study towards the attainment of a Diploma of Marketing and Communication and then applied for a student visa.[2]
4. On 14 June 2019, a delegate of the Minister refused to grant the applicant a student visa. The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily and thereby found that cl 500.212 in Pt 500 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) was not met.[3]

1. On 1 July 2019, the applicant applied to the Tribunal for review of the delegate's decision.[4] An 'Appointment of Representative - Appointment of Authorised Recipient form' appointing Mr Sukhjinder Pal Singh of Hope Immigration Services (representative) as the applicant's representative and authorised recipient was also attached to the application for review.[5]
2. On 8 March 2020, the representative provided the Tribunal with a copy of the applicant's confirmation of enrolment (CoE) for a Diploma of Marketing and Communication course provided by the Australian Institute of Technology and Education which commenced on 3 February 2020 and was due to end on 31 May 2020 (AITE Diploma course).
3. On 8 May 2020, the Tribunal, via the representative, invited the applicant to provide information pursuant to s 359 of the Act (s 359 invitation).[6] A copy of Direction No. 69 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications' (Direction 69) was attached to the s 359 invitation. The invitation allowed the applicant an opportunity to respond by way of completing a 'Request for Student Visa Information' form (RSVI form) either online or in paper format.[7] Relevantly, the invitation contained the following statements:

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.

1. On or about 15 May 2020, the applicant submitted a completed RSVI form online.[8] By way of addressing various questions within that form, the applicant gave responses which indicated:

(a) his consent to the Tribunal deciding the review without a hearing;[9]

(b) that he was currently studying in the AITE Diploma course;[10]

(c) that in May 2020, he had enrolled in a Graduate Diploma of Management at the Australian Institute of Business & Technology that was due to start in July 2020 and end in July 2021;[11]

(d) that he had been enrolled in a registered course of study at all times while in Australia as the holder of a student visa;[12] and

(e) that he entered his name in the 'Declaration and submission' section of the completed RSVI form, recording himself as the person making the declaration.[13]

1. In support of his application to the Tribunal, the following documents were attached to the RSVI form:

(a) submissions authored by the representative in response to the s 359 invitation;[14]

(b) a statement of attainment from Duke College for competencies forming part of a Diploma of Marketing and Communication course;[15]

(c) a letter dated 12 May 2020 from the AITE Student Support Team confirming the applicant's enrolment in the AITE Diploma course and a record of results for the AITE Diploma course issued on 19 May 2020;[16] and

(d) a conditional letter of offer to enrol in a Graduate Diploma of Management (Learning) course offered by the Australian Institute of Business and Technology to commence on 6 July 2020 (conditional letter of offer of course enrolment).[17]

1. No further evidence was provided to the Tribunal by the applicant, or his representative, before the Tribunal made its decision on 12 August 2020. However, by way of Affidavit affirmed on 10 July 2023, the applicant deposed that on 24 July 2020 he enrolled in the following two courses to be provided by the Australian Institute of Business and Technology:

(a) a General English (Beginner to Upper Intermediate) course that was due to commence on 27 July 2020 and end on 11 December 2020;[18] and

(b) a Graduate Diploma of Management (Learning) course that was due to commence on 11 January 2021 and end on 7 January 2022.[19]

1. On 12 August 2020, the Tribunal affirmed the delegate's decision to refuse to grant the applicant a student visa.[20]

1. By way of its decision dated 12 August 2020, the Tribunal noted that the applicant in his completed RSVI form, consented to the Tribunal deciding the review without a hearing and, for that reason, the Tribunal determined the review application 'on the papers'.[21]
2. The Tribunal identified that the primary criteria set out in Pt 500 of Sch 2 to the Regulations must be satisfied for the applicant to be granted a student visa, and that cl 500.211(a) required that, at the time of the decision, the applicant was enrolled in a registered course of study.[22]
3. In considering whether the applicant met the requirements of cl 500.211(a), the Tribunal:

(a) observed that when the applicant applied for the student visa, the applicant confirmed he was at that time a current holder of a CoE; [23]

(b) recorded the applicant had provided the Tribunal with:

(i) a CoE for the AITE Diploma course which had ceased on 31 May 2020;

(ii) an indication that he had a 'future enrolment for a Graduate Diploma of Management...scheduled to commence in July 2020 and conclude in July 2021';

(iii) the conditional letter of offer of course enrolment;

(iv) no evidence that he had been accepted into that Graduate Dimploma course or that he was actually enrolled in that course at the date of the Tribunal's decision;[24]

(c) concluded that, as there was no evidence before it to indicate the applicant was enrolled in a registered course of study at the date of its decision, the applicant did not meet cl 500.211(a).[25]

1. On that basis, the Tribunal affirmed the delegate's decision to refuse to grant the applicant a student visa.[26]

500.211

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 originating application, filed on 10 September 2020, contains two particularised grounds of review. By an amended application, filed on 18 July 2023, the applicant raises three grounds of review (reproduced below without alteration):
   1. The Tribunal failed to comply with s 360 of the Act as there was no effective consent to the Tribunal proceeding without a hearing as the agent for the appellant acted beyond the scope of his authority in returning the Response to Invitation without instructions or contrary to the instructions provided by the applicant

2. The Tribunal failed to afford the applicant procedural fairness.

Particulars

1. The applicant provided the Tribunal with a letter of offer for a course at the Australian Institute of Business and Technology.

2. PAM3 sch2 Visa 500-4.6.2.1 Evidence of Enrolment directs that if a letter of offer is provided then the applicant should be given the opportunity to provide the Certificate of Enrolment.

3. The Tribunal did not provide the applicant with the opportunity to provide the Certificate of Enrolment.

3. The Tribunal decision was legally unreasonable

Particulars

The applicant repeats the particulars to ground 2

1. The applicant filed written submissions in this matter on 11 November 2024. The Minister also filed written submissions on 29 November 2024.
2. On 9 December 2024, the parties were notified the matter had been listed for Final Hearing at 10.15am on 21 January 2025.
3. On 17 January 2025, the applicant filed a further amended application. By this further amended application, the applicant sought to plead a further particular to ground 3 (reproduced without alteration):

3. The Tribunal decision was legally unreasonable

Particulars

1. The applicant repeats the particulars to ground 2
2. The Tribunal failed to make an obvious inquiry about a critical fact the existence of which were easily ascertained as it did not consult the PRISMS database to see if the applicant was enrolled and it did not consult the applicant's representative

1. The Minister provided my Chambers with written submissions at 8.05am on 21 January 2025 in which he opposed leave being granted to the applicant to further amend the application. At hearing before me on 21 January 2025, the applicant sought leave to rely on the further amended application. I heard oral submissions from the parties as to whether leave should be granted. At the conclusion of this hearing, I made the following orders:
   1. The proceedings are adjourned until 10:15am on Friday 21 February 2025 before Judge Papadopoulos for final hearing.
   2. Leave is granted to the applicant to rely on the further amended application filed on 17 January 2025.
   3. On or before 4:00pm on 24 January 2025, the applicant is to file and serve supplementary written submissions and any Affidavit material to be relied upon.
   4. On or before 4:00pm on 14 February 2025, the first respondent is to file and serve supplementary written submissions and any Affidavit material to be relied upon.
   5. The applicant pay the first respondent's costs and disbursements thrown away occasioned by the grant of leave referred to in order 2.
2. These proceedings were brought back before me on 21 February 2025.

1. At hearing, the applicant confirmed that grounds 2 and 3(a) of the further amended application were not pressed. The applicant also read and relied on his Affidavit affirmed on 10 July 2023 (applicant's Affidavit).

1. By ground 1, the applicant contends he did not consent to the Tribunal determining the review without a hearing and the Tribunal had breached s 360 of the Act by failing to afford him an opportunity to attend a hearing. In making this contention, the applicant relies on his Affidavit as evidence that he did not provide effective consent to the Tribunal proceeding without a hearing and the decision of Minister for Immigration and Multicultural and Indigenous Affairs v SZFML and Anor [2006] FCAFC 152 (SZFML), as followed by this Court in Gomes Torres v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 801 (Gomes Torres).
2. In the applicant's Affidavit, the applicant gave evidence in relation to having not seen the completed RSVI form before the Tribunal made its decision nor instructed his representative about not wanting to attend the Tribunal hearing:

18. I have been shown pages 91 to 99 of the Court Book. I had not seen this document until I received the Court Book. At no time did I instruct Sukhinder Singh that I did not want to have a hearing at the AAT.

1. The Minister contends the applicant consented to the Tribunal proceeding without a hearing in the completed RSVI form and that the relevant terms of that form are unambiguous, further noting the RSVI form clearly states that if consent is given the applicant would not be invited to a hearing and the Tribunal would proceed to a decision based on the information and evidence before it. The Minister argues the Affidavit evidence should not be accepted as proving there was no effective consent for the Tribunal proceeding without a hearing. The Minister provides three bases in support of that argument:[27]

23. Firstly, the evidence regarding the instructions provided by the Applicant to Mr Singh for the appeal to the Tribunal is vague, incomplete and unpersuasive. The Applicant alleges that he had not provided instructions to Mr Singh about whether he wanted to have a hearing. In fact, he only recalls speaking to Mr Singh once vaguely about hearings potentially between 14 June 2019 and 1 July 2019. The only evidence given by the Applicant regarding that conversation is set out by the Applicant in his Affidavit at [12]. There is no evidence, for instance, of anything said by the Applicant to Mr Singh regarding his instructions, whether in response to the statement that Mr Singh is claimed to have made or otherwise. Further, there is no other evidence provided of the terms of the engagement between the Applicant and Mr Singh. There is no objective evidence of what (if any) instructions had been provided by the Applicant to Mr Singh on this matter and no evidence from Mr Singh. Despite that, by ground 1 the Applicant claims that Mr Singh completed the Response form either without or contrary to the Applicant's instructions. It is apparent from the accompanying submission that in responding to the Tribunal Mr Singh understood that he was acting 'as instructed' by the Applicant (CB 100). Further, the evidence of the Applicant does not permit the Court to determine either that the form was completed without instructions or, in the alternative, that it was completed contrary to instructions. For instance, the Applicant's evidence that instructions on the subject matter had not been provided is inconsistent with the claim that the form had been completed contrary to instructions. Then, the evidence provided does not permit the Court to properly assess whether the instructions actually provided permitted Mr Singh to complete the form as he did.

24. Secondly, the Applicant alleges that he had not seen the document at pages 91 to 99 of the Court Book - being the Request form. Assuming that is true, it is not surprising that the Applicant may not have seen that form. It is common practice for the representatives of Applicants to complete forms such as this on behalf of their clients. Regardless, the Applicant had knowledge of the Tribunal's request for information, assisted his representatives to respond and had knowledge that his representatives responded to the Tribunal's request for information (see [21]). This curiously forming part of the response that included the Applicant's consent in the Request form to the Tribunal proceeding to making a decision on the papers.

25. Thirdly, the Applicant takes no issue with the balance of the information and documentation that was provided in and with the Request form.

26. Simply, the evidence is not sufficient to prove that there was no effective consent: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFML and Anor [2006] FCAFC 152; 236 ALR 294.

1. Section 360(1) of the Act requires the Tribunal to 'invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.' This obligation does not apply, however, if 'the applicant consents to the Tribunal deciding the review without the applicant appearing before it': see s 360(2)(b). If this occurs, the applicant is not entitled to appear before the Tribunal: see ss 360(3) and 363.
2. Aided by the decisions of SZFML and SZGWN v Minister for Immigration & Citizenship (2008) 103 ALD 144; [2008] FCA 238 (SZGWN), the following principles in relation to the question of effective consent may be discerned:

(a) effective consent is a statutory precondition to the application of s 360(2)(b) of the Act: see SZFML at [74];

(b) consent for the purposes of s 360 of the Act must be in unambiguous terms: see SZGWN at [43]; and

(c) in assessing whether effective consent has been given, the written record purporting to communicate the applicant's consent to the Tribunal is not necessarily determinative: see SZFML at [65].

1. In the present case, as described above at [11], and identified in the Tribunal's decision at [5], the Tribunal received the applicant's completed RSVI form in which it was clearly indicated that the applicant consented to waive his right to a hearing. In Khadgi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 991 (Khadgi), the applicant indicated his consent to the Tribunal deciding his matter without a hearing by way of affirmatively answering a question in an online form. In reviewing the primary judge's conclusion that there was no ambiguity as to whether consent was given, SC Derrington J was unprepared to disturb that conclusion in circumstances where the applicant had always been represented by a migration agent and had failed to demonstrate that the wording in relation to the question of consent in the online form was confusing or unintelligible.[28] Like Khadgi, the written record in this case is clear in terms of specifying the applicant's consent to waive his right to a hearing before the Tribunal and the consequences that would arise by way of the Tribunal proceeding to a decision 'on the papers'.
2. The applicant's reliance on Gomes Torres is misconceived. Unlike Gomes Torres, in which the Tribunal had received two separate RSVI forms submitted by the applicant, one of which indicated a level of confusion on the applicant's part in relation to whether a hearing would be conducted, the completed RSVI form in the present case was clear and in unambiguous terms.
3. Turning to the applicant's argument that his representative's conduct, or arguable misconduct, disturbed the effectiveness of his consent, I am unpersuaded by the evidence proffered in support of that argument. By contrast, I find the Minister's submissions extracted above have greater force. In particular, I agree that the applicant's evidence in relation to the instructions provided to his representative is vague and incomplete. On that basis, I find the applicant's argument difficult to accept, particularly in the absence of further detail surrounding the nature of those instructions, documentary evidence setting out those instructions and the terms of the applicant's engagement of the representative to assist with the review application.
4. Therefore, I am of the view that the applicant consented to the Tribunal proceeding to a decision without a hearing and conclude the Tribunal did not breach its obligation pursuant to s 360 of the Act. No jurisdictional error has been established, and the ground must fail.

1. By ground 3(b) the applicant contends that it was legally unreasonable for the Tribunal not to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [30] (SZIAI).
2. As stated above at [13], there is evidence before the Court that on 24 July 2020 the applicant had enrolled in two courses to be provided by the Australian Institute of Business and Technology, namely a General English (Beginner to Upper Intermediate) course that was due to commence on 27 July 2020 and end on 11 December 2020,[29] and a Graduate Diploma of Management (Learning) course that was due to commence on 11 January 2021 and end on 7 January 2022.[30] Information in relation to the applicant's enrolment in these courses was not provided to the Tribunal before it made its decision on 12 August 2020.
3. The applicant submits that the Tribunal should have further consulted his representative and accessed the Provider Registration and International Student Management System (PRISMS database), which the Tribunal had access to, to obtain such evidence, and that the failure to do so constitutes jurisdictional error on the Tribunal's part. The applicant argues that if those inquiries had been made, the Tribunal would not have found the applicant had failed to satisfy cl 500.211.
4. The Minister submits that the Tribunal did not act in a legally unreasonable manner in not making any further requests for information or inquiries as contended by the applicant. The Minister drew my attention to Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh) at [42], where the Full Court held that 'legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the Court'. The Minister submits that an assessment of the reasonableness of the exercise of a discretion, in the particular circumstances of the case, is, as Gageler J explained in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) at [59], informed by 'the terms, scope and policy of the statue'. That extends to s 2A of the former Administrative Appeals Tribunal Act 1975 (Cth), which provided the Tribunal must pursue the objective of providing a mechanism of review that is 'fair, just, economical, informal and quick'. Additionally, the Minster argued that simply because a power could be exercised in an applicant's favour does not require the Tribunal to do so: see SZVFW at [15]. The Minister further submits there is no duty to inquire (SZIAI at [25] and Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36]) and there must be something about the particular circumstances of the case (perhaps something 'extraordinary': see SZVFW at [70], or something 'rare' or 'exceptional'; see Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 (Kaur) at [33]) that would effectively require the Tribunal to do so.
5. First, in relation to applicant's argument the Tribunal should have consulted further with his representative, by way of the following notation in the RSVI form, the applicant was put on notice of the Tribunal making its decision whilst having regard only to the information and evidence before it:[31]

Note: If you consent to us deciding your review without a hearing:

• You will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case. Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker.
• ...
• You should provide us with all the information you would like us to consider in your case. A decision will not be made until after the period for responding to this invitation has passed. Additional information may also be given at the end of this form.

1. On that basis, I do not accept the contention that the Tribunal should have further consulted with his representative in order to enable the applicant to further make out his case. In my view, the applicant had been provided sufficient opportunity and time to provide the Tribunal with information and evidence in support of his review application and the consequences of his failure to avail himself of that opportunity cannot be visited upon the Tribunal.
2. I also note the following statement in the applicant's Affidavit:

27. I expected that Hope Migration and Education would forward to the Tribunal the COE for me to commence an ELICOS course at the Australian Institute of Business and Technology in July 2020 and later a Graduate Diploma of Management (learning). I was very surprised to learn that they had not done so. had the Tribunal asked whether there was a COE to support the conditional letter of offer then I would have sent the COE to the Tribunal or instructed Hope Migration and Education to do this.

1. This statement reveals an allegation of negligence on the representative's part which, in and of itself, does not amount to a fraud on the Tribunal's decision-making process: see Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 at [33]; SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; 81 ALJR 1401; 237 ALR 64; 96 ALD 510; HCA 35. Furthermore, I am not persuaded the Tribunal was under any obligation to follow-up with the applicant in order to determine whether he had secured a CoE in relation to the course specified within the conditional letter of offer of course enrolment, particularly in circumstances where the applicant did not provide the Tribunal with any information detailing his intention to take such steps or information or evidence of having taken any steps towards securing enrolment in that course. Furthermore, the Tribunal had no information before it indicating the applicant's intention to enrol at the Australian Institute of Business and Technology in an ELICOS course that was due to commence in July 2020 and a subsequent Graduate Diploma of Management (Learning). On that basis, it was not obvious, in the sense contemplated by the High Court in SZIAI, to the Tribunal that it make any further inquiries of the representative or the applicant in relation to these matters.
2. Secondly, in relation to the applicant's argument that the Tribunal should have undertaken its own further inquiry by requesting further information or consulting the PRISMS database, no such inquiry was suggested within the relevant Procedural Instruction document set out in the relevant Departmental Procedures Advice Manual. Indeed, that procedural guidance, while addressed to Departmental delegates, indicated the appropriate course was to make such an inquiry only in circumstances where an applicant had provided a letter of offer rather than a conditional letter of offer of course enrolment: [32]

4.6.2.1. Evidence of enrolment

Acceptable evidence of enrolment for clause 500.211(a) purposes is:

• a current CoE for each course of study with a status of 'approved' or 'studying' or for secondary exchange students, an AASES form (defined in regulation 1.03) or

• for Foreign Affairs and Defence students, a letter of support from DFAT/Defence containing details of the intended course of study or

• for postgraduate research students required to remain in Australia for the marking of their thesis, a letter for postgraduate thesis marking issued by the relevant Australian education provider.

The onus is on the applicant to provide all information necessary to Home Affairs. The decision maker is not required to request further information (except if a natural justice obligation arises under section 57 of the Act) or check PRISMS for further CoEs.

...

Applicants in Australia - Relying on a letter of offer

Applicants in Australia who, at time of lodgement, provide a Letter of Offer must, prior to decision, be given the opportunity to obtain CoEs for courses. A visa application can be refused if the applicant does not satisfy other Schedule 2 criteria.

(emphasis added)

1. There is nothing before the Court to indicate that the approach suggested in this procedural guidance is unlawful or should not be followed by the Tribunal. I am of the view that this guidance supports the Tribunal's approach in not providing the applicant a further opportunity to present evidence as he had only provided a conditional letter of offer of course enrolment to the Tribunal at the time of its decision and the Tribunal had not received any information or evidence of the applicant's intention to satisfy, or satisfaction of, any conditions stipulated within that letter in order to secure enrolment in the relevant course. On that basis, it was not obvious, in the sense contemplated by the High Court in SZIAI, to the Tribunal that it make further inquiries of the applicant in relation to the provision of a CoE or to check the PRISMS database for the existence of a CoE.
2. Accordingly, no jurisdictional error arises in relation to this ground.

1. For the above reasons the application filed on 10 September 2020, as amended, is dismissed.
2. Finally, as a consequence of:

(a) the change in name of the Minister's portfolio, the name of the first respondent is to be amended to 'Minister for Immigration and Multicultural Affairs'; and

(b) the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to 'Administrative Review Tribunal'.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[18] Applicant's Affidavit affirmed 10 July 2023, Annexure 'SS5'.

[19] Applicant's Affidavit affirmed 10 July 2023, Annexure 'SS7'.

[27] Minister submissions filed 29 November 2024.

[28] Khadgi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 991 at [17].

[29] Applicant's Affidavit affirmed 10 July 2023, Annexure 'SS5'.

[30] Applicant's Affidavit affirmed 10 July 2023, Annexure 'SS7'.

[32] Procedures Advice Manual 3 - Procedural Instruction - [Sch2Visa500] - Student - Visa 500 - Student.