Singh v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 1693

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1693

File number: MLG 1737 of 2019
Judgment of: JUDGE LADHAMS
Date of judgment: 15 October 2025
Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a student visa – whether the Tribunal failed to have regard to a relevant document – whether the Tribunal unreasonably failed to give the applicant more time to provide evidence – whether the Tribunal unreasonably failed to adjourn the hearing – whether the Tribunal acted unreasonably in exercising its discretion in s 362B(1A)(a) of the Migration Act 1958 (Cth) to make a decision on the review when the applicant failed to appear at the hearing – no jurisdictional error – application dismissed.
Legislation:

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 360A, 362B, 368, 379A, 426A, 476, 477

Migration Regulations 1994 (Cth) Sch 2, cl 500.213, reg 4.21

Cases cited:

BNF21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1529

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975

EEV18 v Minister or Immigration and Multicultural Affairs [2025] FedCFamC2G 173

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12

Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185

Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091
Division: Division 2 General Federal Law
Number of paragraphs: 83
Date of hearing: 7 April 2025
Place: Perth (via Microsoft Teams)
 Applicant: The applicant appeared in person
Counsel for the First Respondent: Mr A Cunynghame
Second Respondent: Submitting appearance, save as to costs
Solicitor for the Respondents: Sparke Helmore Lawyers

ORDERS

MLG 1737 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

RAMINDER SINGH

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

15 OCTOBER 2025

THE COURT ORDERS THAT:

1.The application is dismissed.

Note: The form of the…

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Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1693
Case
[2025] FedCFamC2G 1693
Decision Date

CaseChat Overview and Summary

In Singh v Minister for Immigration and Multicultural Affairs, the applicant, Mr Singh, sought a judicial review of a decision made by the Administrative Appeals Tribunal (AAT) to affirm the Minister’s decision to deny him a student visa. The primary contention was whether the AAT erred in its handling of the applicant's visa application, particularly regarding the assessment of his English language proficiency. The applicant argued that the AAT failed to consider relevant documents, unreasonably denied him more time to provide evidence, and unreasonably refused to adjourn the hearing. Additionally, the applicant claimed the AAT acted unreasonably in making a decision in his absence.

The legal issues before the Court included whether the AAT failed to consider relevant evidence, whether it unreasonably denied the applicant further time to provide evidence, whether it unreasonably refused to adjourn the hearing, and whether it acted unreasonably in making a decision in the applicant’s absence. The Court had to determine whether these actions constituted a jurisdictional error that would warrant the quashing of the AAT’s decision. Jurisdictional error, as defined by the High Court, involves breaches of statutory conditions, misunderstanding of applicable law, or procedural unfairness.

The Court found that the AAT did not commit any jurisdictional error. There was no evidence that the AAT failed to consider relevant documents, as the applicant had not provided any evidence of his English language proficiency despite multiple requests. Furthermore, the AAT's decision not to grant additional time for the applicant to provide evidence was deemed reasonable given the repeated opportunities provided over six months. The Court also found no error in the AAT's refusal to adjourn the hearing or in making a decision in the applicant’s absence, as the applicant had been adequately informed and had multiple opportunities to present his case.

Based on these findings, the Court dismissed the application for judicial review, concluding that the AAT's decision was lawful and free from jurisdictional error.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

No jurisdictional error arises on the basis that the Tribunal failed to consider relevant evidence.Did the Tribunal unreasonably fail to give the applicant further time to provide evidence of his English language proficiency? In ground 3, the applicant asserts that he requested an extension to provide the requested documents. It is unclear whether this refers to a request for an extension of time to provide additional evidence, or his request for the hearing to be adjourned. I consider here whether the Tribunal acted unreasonably in not granting the applicant additional time to provide evidence, and I address below whether the Tribunal acted unreasonably in not adjourning the hearing. The consideration of whether the Tribunal acted unreasonably in not affording the applicant further time to provide evidence is also relevant to ground 4, in which the applicant asserts that the Tribunal did not offer him more time to provide the requested documents. This assertion of error fails for two interrelated reasons. First, there is no evidence before the Court to suggest that the applicant requested further time to provide documentary evidence that he met the English language proficiency requirement. Second, the alleged assertion of error needs to be considered in the context of the history of the matter. As noted in the background summary above, prior to the delegate’s decision, the Minister’s Department wrote to the applicant on 3 November 2018, 10 December 2018 and 22 January 2019 requesting, amongst other things, evidence that he met the English language proficiency requirement. The only document provided by the applicant relating to his English language proficiency is a confirmation of a PTE English exam booking to sit a test on 12 December 2018. The applicant did not provide to the Department any evidence that he met the English-language proficiency requirement. When the matter was before the Tribunal, the Tribunal wrote to the applicant on 5 March 2019 to request that he provide evidence that he meets the English language requirements. In the hearing invitation sent on 17 April 2019, the applicant was again invited to provide evidence that he met the English language proficiency requirement and this was reiterated when the Tribunal wrote to the applicant on 6 May 2019 confirming that the hearing will go ahead on 7 May 2019. Thus, it can be seen that the Department and the Tribunal between them invited the applicant to provide evidence of his English language proficiency on six occasions over a period of approximately six months. The applicant did not respond to those requests other than to provide a confirmation of a booking to sit a test scheduled for almost five months before the Tribunal decision. In these circumstances, there is nothing unreasonable in the Tribunal proceeding to make a decision without affording the applicant further time to provide the evidence that had been requested on six occasions. This is particularly so in the absence of any request for further time or any indication that the applicant intended to provide the relevant evidence if given more time.

Decision

Reasons for decision

For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error. The application for judicial review must therefore be dismissed. VISA APPLICATION AND ADMINISTRATIVE DECISIONS The applicant entered Australia on a visitor visa in July 2018 and applied for a student visa on 18 September 2018. On 3 November 2018 the Minister’s Department sent a letter to the applicant requesting more information, including evidence of the applicant’s English language proficiency. The applicant was asked to provide the following evidence relating to his English language proficiency:You are required to provide evidence of your English language proficiency to achieve the relevant English language test score. We will only accept the following English language tests from one or more of the test providers listed below:•The International English Language Testing System (IELTS)•Test of English as a Foreign Language internet-Based Test (TOEFL iBT)•Pearson Test of English Academic (PTE)•Cambridge English: Advanced (CAE) also known as Certificate in Advanced English•Occupational English Test (OET)… •TOEFL Paper-Based Test (PBT)……The English test must have been taken two years immediately before the date of Student visa application is made or two year immediately before a decision is made on the application. … In response to this, the applicant relevantly provided to the Department a document showing that he had an appointment to sit a ‘PTE-A: Pearson Test of English Academic’ test on 12 December 2018. On 10 December 2018 the Department sent a further letter to the applicant requesting more information, again including a request that the applicant provide evidence of his English language proficiency. The applicant did not respond to this request. On 22 January 2019 the Department again wrote to the applicant requesting further information, including in relation to his English language proficiency. The applicant provided documents in response to some other aspects of the request for information but did not provide anything in relation to his English language proficiency. On 25 February 2019 a delegate of the Minister refused to grant the applicant a student visa. The delegate found that the applicant did not satisfy cl 500.213 in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) because he did not provide evidence of his English language proficiency. On 4 March 2019 the applicant applied to the Tribunal for merits review of the delegate’s decision. On 5 March 2019 the Tribunal wrote to the applicant requesting that he provide evidence that he met the English language requirements by 19 March 2019. The applicant did not respond to this request for information. On 17 April 2019 the applicant was invited to attend a hearing before the Tribunal on 7 May 2019 to give evidence and present arguments in relation to the issues arising in the review. The invitation also requested that the applicant provide all documents he intended to rely on to establish that he met the criteria for the grant of the visa, including:Evidence you meet the English language proficiency requirements as prescribed by the relevant legislative instrument.

Ratio Decidendi

Legal Principle Established

The evidence before the Court comprises an affidavit filed by the applicant with his judicial review application, annexing a copy of the Tribunal decision, and the court book filed on behalf of the Minister on 8 December 2021. CONSIDERATION OF THE APPLICATION The role of the Court in judicial review proceedings The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]. The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted): 2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40]. The applicant’s oral submissions at the hearing In his oral submissions to the Court, the applicant submitted that he just wants one more chance to finish his study and secure his future. He submitted that when he applied for the visa, he was supposed to do an English test. When he first sat the test, he did not pass and when he was going to do the test again his visa was refused. He wanted to sit the English test again but then Covid happened and he could no longer sit the test. In his reply submissions, the applicant repeated some of the matters that he referred to in his earlier submissions. He also submitted that he told his representative that he was not medically fit, but does not know what the representative conveyed. He gave further information that when he was going to sit the test a second time, Covid came, the college was closed and he was not able to sit his English test.