Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1741

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. Before the Court is an Application filed on 2 April 2019, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 28 February 2019. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).

1. The applicant is a citizen of India.
2. On 15 March 2018, the applicant applied for the Visa. In the Visa application, the applicant nominated a migration agent to act as his representative and provided the email (migration agent's email address) for correspondence. The Visa application recorded the following question, and answer from the applicant:

Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?

No

1. On 24 May 2018, the Department of Home Affairs (Department) sent a letter to the applicant by way of email to the migration agent's email address inviting the applicant to comment on adverse information received by the Department in relation to the Visa application. The Department noted that it had concerns that the applicant had provided false information in relation to the Visa application and that consequently, the applicant might not meet the Public Interest Criterion 4020 of sch 4 of the Migration Regulations 1994 (Cth) (Regulations) (PIC 4020). The Department noted that:
   • in the Visa application, the applicant answered 'No' to the question "Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?"; and
   • Departmental records indicated that the applicant had applied for a Vocational Education and Training Sector (Subclass 572) visa to Australia in June 2015. On 6 July 2015, the Vocational Education and Training Sector visa to Australia was refused.
2. On 7 June 2018, the applicant's migration agent emailed the Department and provided a written response of the applicant dated 7 June 2018 (Statement). In the Statement, the applicant provided the following response (without amendment):

Dear Case Officer

This is regarding the notification to comment on the Information for a Student Visa (subclass 500) visa received on 24 May 2018.

I'd like to apologise for the inconvenience. It was an error on my behalf. As stated I have been under tremendous stress and overlooked that particular question. I can assure you there were no false motives involved. I have also gone over the rest of the questions and made sure they have been correctly answered.

1. On 13 August 2018, the Delegate refused to grant the Visa on the basis that the applicant did not satisfy PIC 4020 and thereby did not meet the requirements of cl 500.217 of sch 2 of the Regulations. PIC 4020(1) required that there be no evidence before the Minister that the applicant had provided the Minister, or a relevant assessing authority, a bogus document or information which was false or misleading in relation to the application for the Visa. Clause 500.217 required that the applicant satisfy PIC 4020.
2. On 30 August 2018, the applicant applied to the Tribunal for review of the Delegate's decision. In that application, the applicant nominated a new migration agent to act as his representative and provided the email (representative's email address) for correspondence.
3. On 8 February 2019, the Tribunal emailed the representative's email address enclosing an invitation for the applicant to attend a hearing scheduled for 28 February 2019. Further, the Tribunal requested that the applicant provide the Tribunal with a copy of a current Confirmation of Enrolment (COE) and any documents evidencing their past studies in Australia at least seven days before the hearing date.
4. On 15 February 2019, the applicant provided the Tribunal with copies of a current COE and Provider Registration and International Student Management System records evidencing his past studies in Australia.
5. On 28 February 2019, the applicant attended the hearing before the Tribunal and gave evidence with the assistance of an interpreter in the Punjabi and English languages. The applicant's representative also attended the hearing. At the hearing, the Tribunal delivered an oral decision affirming the decision of the Delegate to refuse to grant the applicant the Visa.

1. On 1 March 2019, the applicant's representative emailed the Tribunal requesting a written record of the Tribunal's decision. On 22 March 2019, the Tribunal issued its written statement of decision and reasons (Tribunal Decision). On 26 March 2019, the Tribunal sent a copy of the Tribunal Decision to the applicant's representative's email address.
2. At paragraphs [4] - [8] of the Tribunal Decision, the Tribunal summarised the Delegate's decision and noted the information, including the Statement, that the applicant had provided in relation to the Visa application.
3. At paragraphs [9] - [10] of the Tribunal Decision, the Tribunal identified that the issue before it was to consider the Visa application afresh and consider whether the applicant was in breach of PIC 4020 and if so, whether there were compelling circumstances that would lead to the waiver of the Delegate's decision.
4. At paragraphs [11] - [14] of the Tribunal Decision, the Tribunal considered the applicant's oral evidence that he did not know that he had a previous visa refused. The Tribunal did not accept that the applicant did not know that he had a previous visa refused in circumstances where, in relation to the previous visa application:

(a) the applicant had responded to an invitation to comment on whether he met the Genuine Temporary Entrant requirements; and

(b) applied to the Tribunal for review after that visa was refused in July 2015 and only withdrew that application once he was invited to attend a hearing.

1. At paragraph [15] of the Tribunal Decision, the Tribunal found that the applicant provided information that was false and misleading and therefore did not satisfy PIC 4020.
2. At paragraphs [16] - [18] of the Tribunal Decision, the Tribunal considered whether there were any compelling circumstances which would affect the interests of Australia or an Australian citizen, which would justify the granting of the Visa. The applicant's oral evidence was that there were no exceptional circumstances. Accordingly, at paragraph [19] of the Tribunal Decision, the Tribunal found that the applicant did not meet cl 500.217(1) of sch 2 of the Regulations and affirmed the Delegate's decision not to grant the applicant the Visa.

1. The applicant applied for judicial review of the Tribunal Decision on 2 April 2019. The Application contained the following grounds for judicial review (without amendment):
   1. The Tribunal is incorrect in its assertion that the applicant's statement was "misleading in a material particular in relation to application for visa". The Tribunal did not give any weight to the applicant's written statement that the negative (incorrect) answer to the subject question was an error and oversight rather than an intentional response to mislead someone and take advantage of such inadvertently incorrect to answer to the subject question.
   2. The Tribunal also failed to take into account that the applicant had no advantage in answering that question in negative as it was irrelevant to his application.
   3. The Tribunal also did not give enough weight to the applicant's evidence that in his mind he did not know that he had a visa refused. The Tribunal should have explored this evidence further rather than stating that it "beggared belief". This approach of Tribunal amounted to denial of procedural fairness and denial of natural justice. Further exploration of the evidence would have clearly shown the fact that the applicant came to Australia on a student visa which was valid and in force until 15 March 2018. His application for student visa made on 1 June 2015 (which was the subject of refusal on 6 July 2015 and withdrawal by the applicant of his review of such refusal) was not even required or relevant to the applicant's study or stay in Australia. This June 2015 application was lodged by the applicant's migration agent om connection with the applicant's change of study course at this time. In the applicant's mind and honest belief, it was not a refusal of visa, but a withdrawal of visa application, although in fact it was withdrawal of review of visa refusal. Moreover, the applicant had also travelled overseas on his first visa after the refusal of unnecessary June 2015 visa application.
   4. The Tribunal also did not regard it as an exceptional, compelling or compassionate circumstance that the relevant refusal of vis was not even relevant to the applicant's current student visa application. The Tribunal also did not weigh the effect of this inadvertent or irrelevant error on the applicant's future. The Tribunal failed to explain to the applicant, the criteria of exceptional, compelling or compassionate circumstances, so as to give the applicant a fair chance to address those criteria. This amounts to denial of procedural fairness and denial of natural justice.
   5. The Tribunal also did not take into account applicant's enrolment and study history related to his original visa and subject visa application. At all times the applicant had current enrolments in study courses with fees paid and studies partly completed.

1. The hearing took place on 1 September 2025.
2. The applicant appeared on his own behalf with the assistance of an interpreter in the Punjabi and English languages. The Minister was represented by Mr Simpson, solicitor for Clayton Utz.

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 Decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (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. At the hearing the applicant was invited to elaborate on the grounds contained in the Application. In response to that invitation the applicant submitted:

(a) he was nervous before the Tribunal and had not informed the Tribunal of the matters contained in Ground 3 which he asserted would have been disclosed by further exploration by the Tribunal;

(b) because he was nervous the Tribunal ought make its decision again; and

(c) the Court ought provide him more time to put matters before the Tribunal.

1. As I endeavoured to explain to the applicant, the Court is concerned with what occurred before the Tribunal and its decision and cannot simply require the Tribunal to make its decision again because he says he was nervous, nor can the Court require the Tribunal to give him more time to put material before it.
2. In oral submissions the applicant also raised a number of matters not relevant to the issue before the Tribunal, such as his study and enrolment history, which are matters already included in the Application. In addition, the applicant conceded that the Tribunal did not err on the basis of the evidence it had before it at the time.

1. By Ground 1 the applicant contends that the Tribunal did not give any weight to the evidence provided by him in the Statement, being that his answer in the Visa application was an error rather than an intentional response to mislead.
2. That contention must be rejected.
3. Firstly, at paragraph [11] and [13] of the Tribunal Decision, the Tribunal records that the applicant's oral explanation for the incorrect response was that he did not know that he had previously been refused a visa. As set out above, the applicant did not put to the Tribunal other evidence as to why the incorrect response was provided. This does not alter the fact that that was the evidence he gave to the Tribunal. Secondly, the Tribunal considered that explanation and for the reasons given did not accept it. On the evidence before the Tribunal, I consider that conclusion was reasonably open to it and, as submitted by the Minister, provided a cogent basis for the Tribunal to conclude that the application was purposefully untrue and therefore false and misleading. Thirdly, it is a matter for the Tribunal to weigh and assess the evidence before it: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13] per Bell, Gageler and Keane JJ.
4. For completeness, I note that in the Statement the applicant says that the incorrect answer was an error, that he overlooked that particular question and he had no false motives. This is referred to by the Tribunal at paragraph [8] of the Tribunal Decision. However, as set out at paragraph [9] of the Tribunal Decision, the role of the Tribunal was to consider the matter afresh and in light of the evidence before it. That evidence was, as conceded by the applicant, that the applicant was unaware that he had a visa previously refused and was not that he made an error.
5. Accordingly, Ground 1 discloses no jurisdictional error on the Tribunal's behalf.

1. By Ground 2 the applicant asserts that the Tribunal failed to take into account that there was no advantage to him in providing a negative response. This is irrelevant to the Tribunal's task. The issue before the Tribunal was whether the applicant had provided information that was false and misleading.
2. Ground 2 discloses no jurisdictional error on the Tribunal's behalf.

1. By Ground 3 the applicant contends that the Tribunal:

(a) did not give enough weight to the applicant's evidence that he did not know that he had a visa refused; and

(b) should have explored this evidence further instead of saying that it "beggared belief", which amounted to a denial of procedural fairness and natural justice.

1. As set out in Ground 1 above, the Tribunal considered but did not accept the applicant's evidence that he did not know he had been refused a visa.
2. As to the contention that the Tribunal ought have explored this evidence further, and that the failure to do so amounted to a denial of procedural fairness and natural justice, I also reject that contention. I accept the Minister's submission that it is not the role of the Tribunal to make enquiries or obtain evidence: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]. It is for the applicant to put to the Tribunal the evidence he wishes it to consider. The Tribunal put to the applicant the previous visa refusal in accordance with s 359AA of the Act and the applicant provided his response. At the hearing before this Court, the applicant conceded he gave no further evidence to the Tribunal. He therefore had an opportunity to raise any evidence he wished before the Tribunal in relation to the visa refusal. That he was nervous does not alter the fact that he did not put any other evidence before the Tribunal other than that he did not know that he had a visa refused.
3. Ground 3 discloses no jurisdictional error on the Tribunal's behalf.

1. By Ground 4 the applicant firstly contends that the Tribunal erred in not finding exceptional, compelling or compassionate circumstances, given the previous visa refusal was not relevant to the current visa and the failure was inadvertent. Secondly, he contends that Tribunal failed to explain the criteria of exceptional, compelling or compassionate circumstances.
2. As to the first contention that the Tribunal erred in not finding exceptional, compelling or compassionate circumstances, paragraph [16] of the Tribunal Decision records that the Tribunal asked the applicant if there were any compelling or compassionate circumstances that would affect Australia or an Australian citizen and whether he understood the question. At paragraph [17], the Tribunal Decision records that the applicant confirmed he understood the question and at [18] that he replied "No" as to whether there were any such circumstances. Further, as submitted by the Minister neither of these matters could conceivably satisfy PIC 4020(4), which is limited to compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen (Court's emphasis).
3. As to the second contention, as submitted by the Minister, the Tribunal was not required to explain the criteria of exceptional, compelling or compassionate circumstances in circumstances where:

(a) as set out above, the Tribunal asked the applicant if he understood the question as to whether there were exceptional, compelling or compassionate circumstances and he responded "Yes"; and

(b) the applicant was on notice that whether there were compelling or compassionate circumstances for the purposes of PIC 4020(4) was an issue arising in relation to the decision under review, as it was a matter considered by the Delegate, and on which he had been asked to comment.

1. Ground 4 discloses no jurisdictional error on the Tribunal's behalf.

1. By Ground 5 the applicant contends that the Tribunal erred because it did not take into account his enrolment and study history. Neither of these matters were relevant to the issue before the Tribunal; being whether the applicant met the requirements of PIC 4020. The failure by the Tribunal to take these matters into account does not disclose error.
2. Ground 5 discloses no jurisdictional error on the Tribunal's behalf.

1. For the reasons set out above, the Application must be dismissed.
2. The Minister seeks that the applicant pay its costs fixed in the amount of $7,467 being the amount under Item 3, Div 1 of Pt 3 of sch 1 to the Federal Circuit Court Rules 2001 (Cth) at the time at which the Application was made. I shall order accordingly.

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