Kapuria v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 639

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kapuria v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 639

File number(s):

SYG 1260 of 2022

Judgment of:

JUDGE CLEARY

Date of judgment:

9 May 2025

Catchwords:

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether the Tribunal failed to comply with the requirements of s359AA of the Migration Act 1958 (Cth) - whether Tribunal erred in exercise of discretionary power to cancel visa – no jurisdictional error established – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 116, 359A, 359AA, 476

Migration Regulations 1994 (Cth)

Cases cited:

Craig v South Australia (1995) 184 CLR 163

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152

Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312

SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138

Division:

Division 2 General Federal Law

Number of paragraphs:

69

Date of hearing:

24 April 2025

Place:

Parramatta

Applicant:

In Person

Solicitor for the Respondents:

Ms G. Gutmann

ORDERS

SYG 1260 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SUBHAMOY KAPURIA

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CLEARY
DATE OF ORDER:	9 MAY 2025

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $5,900.00

Note: The form of the order is subject to the entry in the Court’s records.

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).

REASONS FOR JUDGMENT

JUDGE CLEARY

INTRODUCTION

1. The applicant has filed an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Act). He seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 25 July 2022 which affirmed a decision of a delegate of the first respondent to cancel the applicant’s Student (Temporary) (Class TU) (subclass 500) visa (student visa) under s 116(1) of the Act.

   FACTUAL BACKGROUND

2. On 14 January 2017, the applicant, a citizen of India, first arrived in Australia on a subclass 500 student visa to study a Bachelor of Nursing.  He was granted multiple subsequent student visas after this date, but did not successfully complete the course.

3. On 17 May 2019, the applicant was granted his final student visa which was valid to 11 April 2022 to study a Bachelor of Business from 13 March 2019 to 19 February 2022.

4. On 5 January 2022, a delegate of the first respondent (the delegate) wrote to the applicant, notifying him that the Department intended to consider the cancellation of his student visa under s 116(1)(b) of the Act, as the Provider Registration and International Student Management System (PRISMS) records accessed by the first respondent’s department indicated he had not been enrolled in a course of study since 27 November 2019 (NOICC). If this were true, the applicant would be in breach of cl (2)(a) of his visa condition 8202 of Schedule 8 of the Migration Regulations 1994 (Cth) (Regulations).

5. On 5 January 2022, the applicant acknowledged receiving the NOICC.

6. On 11 April 2022, the delegate sent the applicant a Notice of Cancellation of his student visa, pursuant to s 116(1)(b) of the Act.

7. On 22 April 2022, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

8. On 23 June 2022, the Tribunal invited the applicant to appear at a hearing on 11 July 2022 to give evidence and present arguments.

9. On 7 July 2022, applicant’s representative provided the Tribunal with the following documents as further evidence:

   (a)A statement from the applicant dated 7 July 2022; and

   (b)The applicant’s confirmation-of-enrolment in a Graduate Diploma of Management (Learning) dated 8 April 2022, for a course commencing on 27 June 2022 and expected to end on 29 October 2023.

10. On 11 July 2022, the applicant (and his representative) appeared before the Tribunal.

11. On 25 July 2022, the Tribunal affirmed the delegate’s decision to cancel the applicant’s student visa.      

    TRIBUNAL’S DECISION

12. The Tribunal first outlined the relevant law.  It then identified the two issues for its determination, firstly, whether the applicant had failed to comply with condition 8202; and, secondly, whether the Tribunal should exercise its discretion to cancel the applicant's visa. 

13. The Tribunal stated it raised with the applicant during the hearing “via s359AA” that his PRISMS records contained information that he had not been enrolled in a course of study from 27 November 2019 when he notified cessation of studies until the date of the delegate's decision of 11 April 2022. The applicant confirmed in oral evidence to the Tribunal that he was not enrolled in a course of study during that period and did not dispute that he had not complied with condition 8202(2) of Sch 8 to the Regulations.

14. The Tribunal found the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course of study or full-time course of study or training from 27 November 2019 to 11 April 2022, and that failing to maintain enrolment meant that the applicant had not complied with condition 8202(2). The Tribunal was satisfied on this basis that the ground for cancellation under s 116(2)(b) existed.

15. The Tribunal next considered whether the visa should be cancelled. It considered the discretionary factors in relation to cancellation of the visa, including the applicant's circumstances and the Department's procedural instructions, and the 'general visa cancellation powers'.

16. The Tribunal briefly summarised the applicant’s study history. He was originally enrolled in a Bachelor of Nursing course but claims the “sights and smells of watching people suffer on a daily basis” in his placements caused him to drop out and subsequently pursue a Bachelor of Business. The applicant dropped out of that course after the second semester due to difficulty with the course material. The applicant provided the Tribunal with evidence that he was set to commence a Graduate Diploma of Management (Learning) from 27 June 2022. The Tribunal observed the applicant's reason for not studying was due to his mental stress because of COVID-19. The Tribunal did not accept the applicant was unable to study due to mental stress because there was no evidence he ever sought medical help.

17. The Tribunal considered the purpose of the applicant’s travel and stay in Australia and whether he had a competing need to travel or remain in Australia. The Tribunal accepted that his travel to Australia in January 2017 was for the purpose of study. However, the Tribunal viewed that the extended length of time he was enrolled from November 2019 to April 2022 had undermined his claim that he remained in Australia for the purposes of study.

18. The Tribunal considered the extend of compliance with visa conditions. The Tribunal found that the applicant had not complied with condition 8202(2) and was not enrolled in a course of study for a period of two years and four months. The Tribunal considered the period to be significant.

19. The Tribunal considered the degree of hardship that may be caused, specifically the shame he will endure by his family if he returns home without a qualification. While the Tribunal accepted that no longer studying in Australia will restrict the applicant from learning different perspectives to that of Indian qualifications, there are still study options for him in his home country.

20. The Tribunal considered the circumstances in which the ground of cancellation arose. The evidence the applicant provided with respect to his lack of study was, for the vast majority, linked to mental health issues. The Tribunal accepted that while he was likely impacted by the COVID-19 pandemic, the fact that he did not seek any medical help during his time off made is difficult for the Tribunal to accept the severity of his mental health claims.  

21. The Tribunal considered past and present behaviour of the applicant towards the Department, noting that there was no evidence found the applicant had not been co-operative with the Department in the past.  The Tribunal gave this factor some weight in the applicant’s favour.

22. The Tribunal considered whether any other person’s visa would or may be cancelled if the applicant’s visa was cancelled.  The Tribunal observed the applicant had claimed to be single with no dependents and found there was no evidence another person's visa would or may be cancelled if the applicant's visa was cancelled.  The Tribunal gave this factor no weight.

23. The Tribunal considered any mandatory legal consequences within the Commonwealth of Australia that would arise if his student visa was cancelled. The Tribunal considered if the applicant remained in Australia without a valid visa, he would be residing unlawfully, and if the visa is cancelled the applicant may be subject to restriction from obtaining a further visa in Australia or may not be granted a further visa for three years.  The Tribunal gave this factor neutral weight.

24. The Tribunal considered whether Australia's international obligation and observed that there was no evidence that Australian international or non-refoulment obligations may be breached if the student visa was cancelled. The Tribunal gave this factor neutral weight.

25. The Tribunal considered any other relevant matters. The Tribunal considered the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. Further, the Tribunal found there were limited aspects favourable to the applicant that did not outweigh the reasons to cancel the visa

26. Considering the circumstances as a whole, the Tribunal concluded that the visa should be cancelled.  The Tribunal affirmed the delegate’s decision to cancel the student visa.

    PROCEEDINGS IN THIS COURT

    Judicial review application and procedural orders

27. On 26 August 2022, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 25 July 2022. The application contains two grounds of review. They are as follows:

    1.The Tribunal failed to comply with s 359AA and/or s 359A of the Migration Act 1958 in respect of information that was to be the reason, or part of the reason, for affirming the decision under review.

    Particulars

    (a)The Tribunal's letter in relation to section 359 is infected with a legal error because the Tribunal failed to provide copy of PRISM.

    (b)       The Tribunal failed to provide a copy of applicant's movement records.

    2.        The Tribunal failed to consider relevant considerations.

    Particulars

    (a)The Tribunal failed to consider applicant's intention to study in relation to exercise its intention to waive.

    (b)The Tribunal failed to consider the consequence namely, 3-year bar for applying for another student vis [sic].

28. On 19 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file any amended application (if applicable) in respect to the hearing by 8 April 2025. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions on 15 April 2025.

29. On 2 April 2025, the proceedings were docketed to me, and set down for hearing before me on 24 April 2025.

    Hearing in this Court on 24 April 2025

30. At the hearing of this matter on 24 April 2025 the applicant was unrepresented.  Ms G Gutmann of Minter Ellison appeared on behalf of the first respondent.

31. At the commencement of the hearing, the Court explained to the parties that its role in deciding the case was limited to considering whether the Tribunal had committed a jurisdictional error. The Court described jurisdictional error as a serious legal error or mistake made by the Tribunal. The Court told the parties it did not have the power to review and re-determine the factual findings of the Tribunal, nor did it have the power to grant a visa. The Court then explained the procedure by which the hearing would be undertaken. The Court finally allowed the Court Book, which contained the Tribunal’s decision, the applicant’s affidavit in support of his application and documents which were before the Tribunal, to be admitted as evidence.

32. Before asking the applicant if he wanted to make any oral submissions in support of his application, the Court asked the applicant to identify the letter that he referred to in particular (a) of ground 1 of his application. He was unable to do so.

33. The Court then invited the parties to make final oral submissions, asking the applicant firstly to tell the Court what was wrong with the Tribunal’s decision. The applicant made oral submissions on both his grounds of review. In summary, he made a number of challenges to the factual findings of the Tribunal’s decision.

34. Ms Gutmann then made brief oral submissions on what the applicant told the Court orally. Ms Gutmann submitted that none of what the applicant told the Court in his oral submissions identified any jurisdictional error that may have been committed by the Tribunal in this case.

    CONSIDERATION

35. The Court can only grant relief if it is established that the decision of the Tribunal is affected by jurisdictional error:  Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Craig v South Australia (1995) 184 CLR 163. To constitute jurisdictional error, the error must be material, 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: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [7].

36. In undertaking its role in judicial review applications, it is not the role of the Court to review the merits or factual findings of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259.

    Ground 1

37. In ground 1 the applicant contends the Tribunal failed to comply with s 359AA and/or s 359A of the Act. There are two particulars in support of ground 1.

38. Relevantly to ground 1, s 359 of the Act provides:

    (1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

    (2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

    (3)If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

    (a)except where paragraph (b) applies—by one of the methods specified in section 379A; or

    (b)if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

    (4)If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

39. Section 359A of the Act provides:

    (1)      Subject to subsections (2) and (3), the Tribunal must:

    (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c)      invite the applicant to comment on or respond to it.

    (2)     The information and invitation must be given to the applicant:

    (a)except where paragraph (b) applies—by one of the methods specified in section 379A; or

    (b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

    (3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

    (4)      This section does not apply to information:

    (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

    (b)that the applicant gave for the purpose of the application for review; or

    (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

    (c)      that is non‑disclosable information.

    (5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

40. Section 359AA of the Act provides:

    (1)If an applicant is appearing before the Tribunal because of an invitation under section 360:

    (a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)      if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii)orally invite the applicant to comment on or respond to the information; and

    (iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    (2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

    Ground 1, Particular (a)

41. In ground 1(a), the applicant asserts the Tribunal issued a letter pursuant to s 359 of the Act, which was affected by legal error because the Tribunal did not provide a copy of the applicant’s PRISMS records.

42. Contrary to the applicant’s assertion, the Tribunal did not invite the applicant (by letter) to give information under s 359(2) of the Act, or to comment on or respond to information that would be a reason, or part of the reasons, for affirming the decision under review (under s 359A(1) and (2) of the Act). At the hearing before this Court the applicant was not able to identify what letter he (or a representative who may have drafted the application) was referring to in ground 1(a). The first respondent submitted that it appeared the applicant was referring to the NOICC. The NOICC, however, is not an invitation to provide information from the Tribunal. It came from the delegate. The Court concludes from this that the obligations under s 359A were not enlivened in the present case, and no breach of s 359A has been made out by the applicant.

1. It is clear from the Tribunal’s decision at [12], the Tribunal raised with the applicant orally at the hearing pursuant to s 359AA(1)(a) of the Act, the applicant’s PRISMS records which contained information that the applicant had not been enrolled in a registered course of study from 27 November 2019 when he notified cessation of studies until the date of the delegate’s decision on 11 April 2022.

2. The Court accepts the first respondent’s submission that under s 359AA(1)(a) of the Act, the Tribunal is empowered to give orally to the applicant the clear particulars of any information it considers would be the reason, or part of the reason, for affirming the decision under review.

3. Further, there is nothing to indicate that the Tribunal did not fully comply with the requirements of s 359AA. The applicant has not sought to prove non-compliance by tendering a transcript of the Tribunal hearing. In the absence of such evidence, the Court should infer that the Tribunal complied with its obligations: SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38] and SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19]. This is because in the absence of a transcript of the Tribunal hearing there is no reason to doubt that the Tribunal complied with section 359AA of the Act. The Tribunal stated in its reasons that it had raised the PRISMS records, and the information contained with them with the applicant “via s359AA”.

4. In any event, the Tribunal noted at [13] the applicant confirmed in his oral evidence that he was not enrolled in a course of study from 27 November 2019 to the date of the delegate’s decision.  The Tribunal also noted the applicant did not dispute he had not complied with condition 8202(2) of the visa. 

5. No breach of s 359A or s 359AA by the Tribunal has been made out by the applicant in relation to the PRISMS records. For these reasons, ground 1(a) does not disclose the Tribunal committed jurisdictional error.

   Ground 1, Particular (b)

6. Under ground 1(b), the applicant asserts that the Tribunal erred by failing to provide a copy of the applicant’s movement records.

7. As was the case with the applicant’s PRISMS records, it is clear from [12] of its decision the Tribunal raised with the applicant orally at the hearing pursuant to s 359AA(1)(a) of the Act the applicant’s movement records which indicated he was a holder of a student visa granted on 17 March 2019 and valid until 11 April 2022 to which condition 8202 applied.

8. As was the case with the applicant’s PRISMS records dealt with above in these reasons, the Court accepts in relation to the applicant’s movement records, the first respondent’s submission that under s 359AA(1)(a) of the Act, the Tribunal is empowered to give orally to the applicant the clear particulars of any information it considers would be the reason, or part of the reason, for affirming the decision under review.

9. Based on the authorities referred to above, as the applicant has not sought to prove non-compliance with s 359AA by tendering a transcript of the Tribunal hearing, the Court infers that the Tribunal did comply with its obligations in so far as they relate to the applicant’s movement records which indicated he was a holder of a student visa granted on 17 March 2019 and valid until 11 April 2022 to which condition 8202 applied.

10. In any event, at the Tribunal hearing the applicant did not dispute he was the holder of a student visa granted on 17 March 2019 valid until 11 April 2022 to which condition 8202 applied.

11. No breach of s 359A or s 359AA by the Tribunal has been made out by the applicant in relation to the applicant’s movement records. For these reasons, ground 1(b) does not identify that the Tribunal committed jurisdictional error.

    Ground 2

12. Ground 2 alleges the Tribunal failed to consider relevant considerations. It relies upon 2 particulars.

    Ground 2, Particular (a)

13. The applicant alleges in ground 2(a) that the Tribunal failed to consider the applicant’s “intention to study in relation to the exercise [of] its intention to waive”.

14. After considering the evidence in relation to the applicant being enrolled in a registered course, at [14] of its decision, the Tribunal found that the applicant was not enrolled in and did not have a CoE in a registered course or a full-time course of study or training from 27 November 2019 to 11 April 2022. The Tribunal found that failing to maintain enrolment meant the applicant had not complied with condition 8202(2) of Schedule 8 of the Regulations.

15. Having found that the applicant had not complied with the condition of the student visa, the Tribunal then went on to consider whether, in its discretion, the student visa should be cancelled. At [17] the Tribunal correctly observed that there were no matters specified in the Act or Regulations that must be considered in the exercise of the Tribunal’s discretion in that regard. The Tribunal also correctly observed that in the exercise of its discretion it had to have regard to the circumstances of the case, including matters raised by the applicant, and matters in ‘PAM3 – General visa cancellation powers (ss 109, 116, 128, 134B and 140)’.

16. The Tribunal at [25], in considering the exercise of its discretion, had express regard to the applicant's intention to study Bachelor of Business from March 2019. Then at [26] found that while it accepted the applicant's travel to Australia in 2017 was for the purpose of study, it did not accept that from November 2019 the applicant’s stay in Australia was for the purpose of study. The Tribunal found that the extended length of time the applicant was not enrolled being from November 2019 to April 2022, a period of over 2 years, undermined his claim that he stayed in Australia for the purpose of study. The Tribunal was of the view that if the applicant’s intention was to study, he would have enrolled and studied in that period.

17. It is clear from the Tribunal’s decision that the Tribunal did consider the applicant's intention to study when assessing whether to exercise its discretion to cancel the applicant’s student visa. Ground 2(a) has not been made out.

    Ground 2, Particular (b)

18. The applicant alleges in ground 2(b) that the Tribunal failed to consider the legal consequences, namely the 3-year bar from applying for another student visa.

19. The Tribunal at [41]-[44], in considering whether to exercise the discretion to cancel the applicant’s student visa, expressly considered the mandatory legal consequences of the applicant's student visa being cancelled.

20. The Tribunal expressly referred to the restrictions the applicant may be subject to under s 48 of the Act, and that the applicant would have difficulties in obtaining any further visas in Australia if his student visa was cancelled. The Tribunal also noted under PIC 4013, the applicant may not be granted a further visa for three years from the date of cancellation, and that the cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in Reg 2.12 of the Regulations.

21. The Tribunal found that these legal consequences were the intended and legitimate consequences of cancellation. It gave the consideration of the mandatory legal consequences neutral weight.

22. It is clear from the Tribunal's decision that the Tribunal did consider the legal consequences to the applicant if his student visa was cancelled, including the consequence under PIC 4013 that the applicant may not be granted a further student visa for three years from the date of cancellation.

23. Ground 2(b) has not been made out.

24. For the reasons outlined above, the applicant has not established that the Tribunal’s decision is affected by a jurisdictional error.

25. Further, as the applicant is unrepresented, the Court has read the material before it and is unable to identify any unarticulated jurisdictional error in the Tribunal’s decision.

26. The application is dismissed.

    COSTS

27. The first respondent sought an order that the applicant pay the first respondent’s costs in the amount of $5,900.00. I am satisfied that this amount is fair and reasonable given the nature of these types of matters.  I will make an order for costs in the amount sought.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.

Associate:

Dated:       9 May 2025