Tafur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1350

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. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (the Tribunal), dated 31 August 2024, which affirmed a decision of a delegate of the first respondent (the delegate) to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (the visa).
2. For the reasons set out below, the application must be dismissed.

1. The first applicant (the applicant) is a citizen of Peru. The second named applicant is the first applicant's husband. The third and fourth named applicants are the first and second applicant's twin sons. The fifth named applicant is the first and second applicant's daughter.
2. On 28 July 2020, the applicant was granted the visa, subject to condition 8202 in Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations), which required that an applicant for the visa be enrolled in a full-time registered course of study.
3. On 21 December 2022, the Department issued a Notice of Intention to Consider Cancellation (NOICC), as the applicant ceased to be enrolled in a course of study from 20 January 2022 and therefore had failed to comply with condition 8202(2)(a) of the Regulations.
4. On 9 January 2023, the applicant provided a response to the NOICC.
5. On 23 May 2023, the delegate cancelled the applicant's visa.
6. On 28 July 2023, the applicant applied to the Tribunal for review of the delegate's decision.
7. On 5 August 2024, the applicant attended a hearing before the Tribunal.
8. On 31 August 2024, the Tribunal affirmed the decision under review.

1. At [3], the Tribunal noted that the only decision that was before it was the decision with respect to the first named applicant. The second, third, fourth and fifth applicant's visas were automatically cancelled as a consequence of the first applicant's visa cancellation, not by a decision, but by force of the operation of s 140(1) of the Migration Act 1958 (Cth) (the Act). As no decision was involved in the visa cancellation of the second, third, fourth and fifth applicants under s 140(1), the Tribunal has no jurisdiction with respect to those applicants.
2. The Tribunal clarified the issue before it as whether the applicant had breached condition 8202 of Schedule 8 to the Regulations
3. Condition 8202 of the Regulations requires that the applicant, in line with the student visa she was granted:

(a) be enrolled in a registered course, or in limited cases, a full-time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (2)

(b) has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and

(c) has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

1. A visa may be cancelled under s 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa.
2. The Tribunal noted at [12], that the information from the Provider Registration and International Students Management System (PRISMS), showed that the applicant was not enrolled in a registered course from 20 January 2022 to 5 January 2023. As such, the Tribunal found that the applicant breached condition 8202(2)(a) of her visa.
3. The Tribunal was satisfied that the ground for cancellation in s 116(1)(b) existed and it proceeded to consider whether the visa should be cancelled [14].
4. At [17], the Tribunal noted that on 9 January 2023, the applicant responded to the NOICC and provided the following information:
   • She is going to study a Diploma of Project Management and the course commenced on 19 December 2022 and will end on 17 December 2023.
   • In 2018 she contacted Quack Study Agency to request a Student visa renewal. She paid the agent $13,213 for a visa plus medical insurance and tuition fees for her English course.
   • In early April 2018, she attempted to make a health insurance claim and was advised she was not covered. She contacted the agent who told her he needed another $7,000 to activate her insurance. She requested the agent refund her insurance cover money so she could arrange for cover. Despite her repeated requests the agent did not refund the insurance cover money. She stopped contacting the agent when she found out he went to jail. She suffered from psychological issues because she was scammed of thousands of dollars and had a court case against the agent.
   • Many students were affected and made complaints against the agent and due to the number of complaints and evidence, the agent was convicted and sentenced to community work. In 2020 she won damages in a civil court but it was at a huge mental toll and she has not received any money from the agent who she understands went bankrupt.
   • Between 2018 to 2022 she and her family encountered extenuating circumstances beyond her control that impacted their lives and her studies.
   • Between 2018 to 2022 she was being scammed by her agent, she went to court, experienced a difficult pregnancy, took care of her infant children, all while trying to balance studying which was difficult. Throughout this period she did not make her education her priority which she should have done as a Student visa holder.
   • In June 2018 she miscarried a baby. The doctors told her stress had caused a lot of tension in her body. She had to pay between $700 and $800 for hospital charges.
   • In 2019 she was pregnant with twins. She and her family suffered emotional distress when her twins were born prematurely and passed away shortly after birth.
   • Her next pregnancy was problematic however these twins were born in 2020. She and the twins had health issues and she had significant financial stress due to large medical expenses including $12,000 for hospital care. She suffered emotional stress when she realised her Overseas Student Health Cover (single cover) did not cover her and the twins' medical expenses. When she was discharged from hospital she owed $73,000. She went into depression, experienced trauma and significant stress and was not able to produce milk for the twins. After the twins' birth a friend raised $15,000 for her family via GoFundMe which enabled her to obtain family cover insurance and pay some medical debts.
   • At the time she did not know she had the option to apply for a leave of absence from her institution and the consequences of failing to maintain her enrolment.
   • Due to the high tuition fees she was not able to seek legal advice regarding her visa conditions and the consequences and seriousness of her missed studies. Furthermore she was not able to get support for her mental well-being.
   • It has been some time since her hardships occurred and she is in a better state mentally to study. Her hardships between 2018 to 2022 have passed.
   • Her twins are now more than one year old and they are in good health.
5. Additionally, the Tribunal noted at [18] that the applicant attached the following documents in her response to the NOICC:
   • CoE [Certificate of Enrolment] for Diploma of Project Management created on 6 January 2023;
   • Neonatal discharge summaries dated 12 June 2021 for the applicant's twins;
   • Applicant's discharge summary dated 9 June 2021;
   • Various hospital tax invoices dated in 2021;
   • Letter dated 20 June 2022 from DVA Collections requesting payment of overdue accounts in relation to Westmead hospital ;
   • Copy of Quack Study Sydney invoice dated 13 December 2017 for $13,213.00;
   • Nib OSHC Confirmation of Health Cover (family);
   • Various documents evidencing the applicant's claim in the Division Small Claims in the Local Court including her witness statement in support of her claim; and
   • Copy of Local Courts of New South Wales order dated 26 February 2020 ordering the applicant's agent to pay her $9,883.00.
6. The Tribunal in its consideration of the discretion to cancel the visa had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department's Procedures Advice Manual (PAM3) 'General visa cancellation powers'.
7. The Tribunal found that the applicant's non-compliance with condition 8202 for a period of nearly 12 months, from the cancellation of her enrolment until the issuing of the NOICC, weighed in favour of the visa cancellation [42].
8. In its consideration of the degree of hardship that may be caused as a result of the visa cancellation, the Tribunal accepted that the cancellation of the applicant's visa would be disappointing to the applicant and her family, as they want the third named applicant to complete her education in Australia. Accordingly, the Tribunal gave this consideration some weight against cancellation [43].
9. In relation to the circumstances in which ground of cancellation arose and whether the circumstances were beyond the visa holder's control, the Tribunal noted at [44] that in response to the NOICC, the applicant stated during the period 2018 to 2022 she was being scammed by her Migration Agent and went to court, experienced a difficult pregnancy and took care of her infant children, all while trying to balance studying which was difficult. However, given the timing of the agent's actions and compensation order, the Tribunal was not satisfied that these matters precluded the applicant from undertaking the study for which her visa was granted [44].
10. Whilst the Tribunal accepted that the COVID-19 pandemic may have adversely impacted on the applicant's husband's employment in 2020 and 2021, the applicant was unable to provide a reason for not departing Australia in 2022 after her enrolment was cancelled on 20 January 2022 [47].
11. Additionally, the Tribunal found that the applicant had a significant period of time to rectify her enrolment and failed to do so until contacted by the Department [48]. The applicant did not notify the Department when she was no longer enrolled in a course and as noted, the Tribunal considers it was the applicant's responsibility to ensure she understood the conditions attached to her visa and to ensure that she complied with those conditions [48].
12. The Tribunal found that the breach did not occur in circumstances beyond the applicant's control [49]. The applicant's enrolment was cancelled because she ceased to be enrolled in a registered course from 20 January 2022. The applicant referred to being scammed by a Migration Agent in 2018 and her twins passing away in 2019. The Tribunal noted that the PRISMS records showed the applicant was able to finish English language courses in 2018, 2019 and 2020. Accordingly, the Tribunal found that these matters did not preclude the applicant from enrolment and study.
13. The applicant referred to suffering mental health conditions in 2021, however the Tribunal noted that no medical evidence was provided and based on the evidence before it, the Tribunal was unable to make any findings regarding the claimed mental health conditions.
14. Accordingly, the Tribunal found that there were no extenuating or compassionate circumstances in this case and that this weighed in favour of visa cancellation [50].
15. There was no evidence before the Department that the applicant had behaved inappropriately with the Department and the Tribunal gave this factor no weight in its consideration [51].
16. The Tribunal accepted that there would be consequential cancellations in this case, and gives this factor some weight against exercising its discretion to cancel the visa [53].
17. The Tribunal noted the potential legal consequences of cancellation and the difficulty this would cause the applicant [54].
18. The Tribunal, on balance, considered that any cancellation outcome would not result in a breach of Australia's international obligations under the Convention on the Rights of the Child or the International Covenant on Civil and Political Rights [55] - [57]. The Tribunal gave this consideration no weight against cancellation [58].
19. After considering the totality of the circumstances, the Tribunal gave significant weight to the applicant breaching the visa conditions and found there were no extenuating or compassionate circumstances [60].
20. Accordingly, the Tribunal affirmed the decision to cancel the first named applicant's visa [62].

1. The applicant advances one ground of judicial review contained in an Originating Application filed on 30 September 2024. The sole ground of judicial review is as follows:

The Tribunal's decision is infected with jurisdictional error as it failed to take into account the necessary evidence pertaining to the Applicants' application and failed to give these considerations appropriate credibility.

1. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent's written submissions had been translated to her. The Court also ensured the applicant had access to a pen and paper so she could take notes during the course of the hearing, should she so wish to.
2. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
3. Despite Court orders, no written submissions or other material were provided to the Court by the applicant in support of her case.
4. On the day of the hearing the applicant provided to the Court a number of documents, including a statement outlining the circumstances leading to her visa cancellation, her personal hardship together with certificates as to her daughter's progress in school and a scaffolding certificate in relation to her husband.
5. To the extent that this material was not before the Tribunal, this was objected to by the legal representative of the first respondent. To the extent that the material could be taken as submissions, the legal representative of the first respondent did not object.
6. The Court explained to the applicant that as the Court was undertaking judicial review it could not take into account any evidence that post-dated the Tribunal decision. When asked if a ground for the cancellation of her visa existed due to her non-enrolment in a registered course of study, the applicant answered "Yes".
7. The applicant was then taken to her sole ground of judicial review and asked what the error in the Tribunal decision was. The applicant told the Court there were strong reasons as to why her visa should not be cancelled. These included that the Tribunal did not take into account all of the hardships the applicant had suffered, including being scammed by a Migration Agent and the death of her twin babies.
8. The applicant was taken to paragraph [49] of the Tribunal decision record and asked why she did not seek to defer her enrolment for medical reasons or contact the Department of Immigration and explain her non-compliance. The applicant stated that she was unaware that she needed to do so. When asked if there was anything else she wanted to say, the applicant stated she believed she should be given a further opportunity due to her circumstances.
9. At the conclusion of the first respondent's oral submissions, the applicant was asked if she wished to state anything in reply. The applicant answered "No".

1. The first respondent submits that the sole Ground of judicial review is unparticularised, and that in and of itself is a sufficient basis to dismiss it: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37].
2. The ground alleges that the Tribunal's decision is infected with jurisdictional error for two reasons, the first being that the Tribunal failed to take into account the necessary evidence pertaining to the application. The second being that the Tribunal failed to give these considerations "appropriate credibility".
3. The applicant contends that the Tribunal failed to consider the necessary evidence. However, despite being represented by a Migration Agent, the applicant filed no evidence with the Tribunal. As such, the only documentary evidence before the Tribunal was that which was before the Department including the PRISMS records and the response to the NOICC.
4. It is clear from the Tribunal's decision record that it took into consideration the applicant's response to the NOICC and the oral evidence provided at hearing: [17] - [18], [44] - [47].
5. Additionally, the Tribunal relied on the PRISMS records as evidence that the applicant was not enrolled in a registered course at the relevant time. The Tribunal noted that it adopted the procedure in s 359AA of the Act to put to the applicant information about her enrolment: [19].
6. The Tribunal comprehensively considered all the evidence that was before it. The Tribunal did not err by rejecting the applicant's claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451.
7. Furthermore, the Tribunal did not make any adverse credibility findings in this matter. The Tribunal simply placed significant weight on the fact that the applicant breached a visa condition and did not find that the applicant had compelling reasons for doing so. The question of the weight given to particular evidence is a matter for the Tribunal.
8. The Tribunal's findings were open on the material before it and do not reveal any jurisdictional error.
9. In response to the applicant's oral submissions, the first respondent submitted that the hardships that the applicant identified were all comprehensively considered by the Tribunal. The issue of the fraudulent Migration Agent was considered at [17] and [23] of the Tribunal's decision. The first applicant's pregnancy with her twins and the associated hospitals costs were considered at paragraphs [17] and [24]. The claim regarding the COVID-19 pandemic and the applicant's husband's employment was considered at [47].
10. The Tribunal considered all of the necessary claims in this matter, however, it did not find that the claims rose to the extent that the visa should not be cancelled. The Tribunal was not required to uncritically accept the applicants claims.
11. To the extent that the applicant takes issue with the Tribunal's findings, the first respondent submitted that they were open to the Tribunal.
12. The Tribunal in this matter was concerned with two issues, the first being whether or not there was a ground for cancellation under s 116 of the Act, and that was whether or not the applicant had complied with her visa conditions. It is evident from the PRISMS records that the applicant ceased to be enrolled in full time study.
13. Once a ground for cancellation was established, the Tribunal was then given the discretion to cancel the visa. In considering whether or not it was appropriate to cancel the visa , the Tribunal needed to consider the factors as set out in the PAM3, which it did throughout its decision.
14. Although the applicant's circumstances in this matter are sympathetic, the Tribunal placed significant weight to the applicant breaching the visa conditions. Whilst the Tribunal considered the applicant's hardship, especially what her daughter would experience, in balancing the factors, it found there were no extenuating or compassionate circumstances.

1. The applicant's sole ground of judicial review claims that the Tribunal failed to take into account necessary evidence pertaining to the applicant's application and failed to give these considerations appropriate credibility.
2. No particulars were provided as to what matters were not taken into account or given appropriate credibility. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
3. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

... An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant_: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs_ [1994] FCA 1253; (1994) 52 FCR 437 at 451.
2. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li [2013] HCA 18; (2013) 297 ALR 225 (Li) at [28]; or where a decision has been made that lacks an "evident and intelligible justification": Li at [76]. The test for unreasonableness is "stringent" and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters, or the evaluative judgements made by the decision-maker: Li at [30], [113].
3. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11], Allsop CJ said the following concerning a review of a decision for legal unreasonableness:

The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

1. First the Court is reasonably satisfied that the Tribunal correctly identified that a breach of condition 8202 of the applicant's visa had occurred, in that the applicant had not remained enrolled full time in a registered course of study.
2. Having found that a breach of a condition of the applicant's visa had occurred, the Tribunal then adopted an orthodox process of considering whether or not it should exercise its discretion to cancel the applicant's visa. In so doing, the Tribunal set out fully the applicant's claims at [17], and then proceeded to consider those claims by reference to each of the matters contained in PAM3's General visa cancellation powers.
3. The Court is satisfied that all of the hardships identified by the applicant were considered by the Tribunal. These included the applicant being the victim of a fraudulent Migration Agent (at [17] and [23]), the very unfortunate death of her twin babies and the associated hospital costs associated with this (at [17] and [24]), and her claim regarding the COVID-19 pandemic, together with the fact that her husband's employment was lost (at [47]).
4. The Court is unable to identify any matters that were not properly noted by the Tribunal and then considered during the course of its consideration as to whether or not the applicant's visa should be cancelled.
5. To the extent that the applicant's ground of judicial review claims that the Tribunal's ultimate conclusion was legally unreasonable, the Court is satisfied that although harsh, the outcome was within the legitimate range of decisional freedom available to the Tribunal. The Tribunal considered all relevant matters and gave them appropriate weight in coming to its final conclusion that the applicant's visa should be cancelled. There is nothing legally unreasonable, irrational or illogical in the Tribunal's consideration and its ultimate decision.
6. If anything, the sole ground of judicial review merely seeks to express vehement disagreement with the ultimate conclusion arrived at by the Tribunal, and asked the Court to engage in impermissible merits review.
7. The sole ground of judicial review has no merit.

1. In these circumstances, the application must be dismissed.

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