Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 301
•6 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 301
File number(s): MLG 1590 of 2019 Judgment of: JUDGE BINGHAM Date of judgment: 6 March 2025 Catchwords: MIGRATION– application for judicial review of a decision of the Administrative Appeals Tribunal to cancel a Student (Temporary) (Class TU) Higher Education Sector subclass 573 visa – whether the Tribunal considered the applicant’s circumstances and gave weight in accordance with law – application dismissed with costs Legislation: Migration Act 1958 (Cth) s 116
Migration Regulations 1994 (Cth) cl 8202 of Sch 8
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of last submissions: 21 January 2025 Date of hearing: 21 January 2025 Place: Melbourne The Applicant: In person Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1590 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURSIMRAN SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
6 MARCH 2025
THE COURT ORDERS THAT:
1.The Application filed 22 May 2019 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
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 BINGHAM
By an application filed in this Court on 22 May 2019 (Application), the Applicant seeks judicial review of the decision of the then Administrative Appeals Tribunal (Tribunal), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
On 1 May 2019 the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) to cancel the Applicant’s Student (Temporary) (Class TU) Higher Education Sector subclass 573 visa (Visa) pursuant to s 116(1)(b) of the Migration Act (Tribunal’s Decision).
BACKGROUND
The Applicant is an Indian national. He arrived in Australia in March 2014 and completed two semesters of a Master of Professional Accounting at Charles Sturt University. The Applicant then transferred into a course at Holmes Institute for the purpose of completing a Master of Professional Accounting. He commenced this course on 3 August 2015 and ceased his studies on 14 October 2016. The Applicant held the Visa at the relevant times.
As a holder of the Visa the Applicant was required to meet Condition 8202 of Schedule 8 (the Condition) of the Migration Regulations 1994 (Cth) (Regulations). The Applicant was, among other things, required by Condition 8202 to be enrolled in a full-time registered course[1], to not be certified by his education provider as not achieving satisfactory course progress[2] and course attendance.[3]
[1] Migration Regulations 1994 (Cth) (Migration Regulations), Schedule 8, Condition 8202(2)(a).
[2] Migration Regulations, Schedule 8, Condition 8202(2)(c)(i).
[3] Migration Regulations, Schedule 8, Condition 8202(2)(c)(ii).
On 8 August 2017, the Delegate cancelled the Visa (Delegate’s Decision). The Delegate determined that the Applicant had not complied with Condition 8202(2)(a) in that he had not been enrolled in a registered course of study since 18 October 2016.
The Applicant lodged an application for review of the Delegate’s Decision on 16 August 2017. On 28 February 2019, the Tribunal sent an invitation to attend a hearing on 1 May 2019 to the Applicant. The response to hearing invitation form was provided to the Tribunal by the Applicant on 6 March 2019. The hearing took place on 1 May 2019 in Melbourne (Tribunal Hearing). The Applicant appeared at the Tribunal Hearing.
THE TRIBUNAL’S DECISION
The Tribunal found that the Applicant was in breach of his Visa conditions by not maintaining enrolment in his course between 18 October 2016 and 8 August 2017. The Applicant accepted that he was not enrolled in a registered course during this period but submitted that he had adequate excuses for the failure to comply with the Condition.
The Tribunal, before determining whether the Applicant’s Visa should be cancelled had regard to, among other things, the Applicant’s material and submissions as to why he had not complied with the Condition. These matters included academic progression, his interactions with the educational institution and in particular not receiving responses to email queries or requests for discussions, a physical injury to his finger, a lost wallet containing documentation evidencing his complaints to the college about difficulties he was having with the course, an alleged physical altercation near his residence, and illness of his mother. The Tribunal did not accept this as an adequate explanation to demonstrate that the circumstances were beyond the Applicant’s control.
The Tribunal concluded, taking into account the circumstances as a whole, that the Visa should be cancelled.
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 22 May 2019, within 35 days of the date of the Tribunal’s Decision as prescribed by s 477 of the Migration Act.
On 10 November 2021 and 30 October 2024, Orders were made for the filing of material. No material was filed by the Applicant in accordance with these Orders.
This matter was heard on 21 January 2025 in person (Hearing). The Applicant appeared self-represented and was assisted by a Punjabi interpreter who attended the hearing by audioconference. The Minister was represented by a Solicitor. The Applicant confirmed that his preference would be to converse in the English language and use the Punjabi interpreter when required. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
The Applicant relied upon the following documents:
(a)The Application; and
(b)The Affidavit of the Applicant sworn and filed on 22 May 2019.
The Minister relied upon:
(a)The Response filed 13 June 2019;
(b)The Outline of Submissions filed on 7 January 2025 and
(c)Tendered the Court Book filed 1 December 2021.
The Applicant relied on the three grounds of review in his Application (Grounds of Review).
(1)Item 16 of AAT decision record. The member did not consider the issue notified via email to university about the subjects being taught were out of syllabus (Ground 1)
(2)In item 22 and 33 of AAT decision record the member did not consider my case in depth in context to my prevailing situation and compelling circumstances from medical issues and surgery. (Ground 2)
(3)Item 32 - the member did not intervene for the education provider without academic progress while the progress was interrupted for valid reasons and request for deferment was never responded back (Ground 3)
Bold and in italics added. Otherwise as written
I took the Applicant to each ground of review and asked him to explain to me why he said that the Tribunal had made a mistake.
CONSIDERATION
Ground 1 - Item 16 of AAT decision record. The member did not consider the issue notified via email to university about the subjects being taught were out of syllabus.
The Applicant submitted that during the period of 18 October 2016 to 8 August 2017 he was bedridden due to an accident, two weeks after the accident he sustained a finger injury, and that he attempted to contact the educational institution by email and the educational institution was unresponsive. When he finally recovered, he submitted, he met with the head of the educational institution in January of 2017 who advised him that it was too late and “they had already notified immigration that I haven’t been enrolled”. In response to a question from me the Applicant said he was not enrolled in the institute when he met with its representative.
It was the Applicant’s position that the Tribunal did not take into account that he had emailed the educational institution about his non-attendance but did not receive a response. The Applicant had in his possession an email that he described as the second email he sent to the educational institution. The Minister submitted that this document was not before the Tribunal and that in any event the Tribunal was not obliged to consider every piece of evidence before it. The document did not appear in the Court Book before me. In any event the Tribunal in the Tribunal’s Decision at paragraph [16] acknowledged that the Applicant had made submissions that he had emailed the institution but had not received a response.
The Applicant claimed that his academic progress was interrupted for valid reasons and his deferral request never received a response. The Minister submitted that the Tribunal has no obligation to make the Applicant’s case for him or assist in establishing his claims. It was further submitted by the Minister that there was no evidence of a request for a deferment.
The Minister submitted that the Tribunal had regard to the way the course was constructed and the Applicant’s difficulties in interacting with the educational institution via email.[4] More specifically, the Minister took me to paragraph [23] and [24] of the Tribunal’s Decision where the Tribunal considered the circumstances in which the Applicant could not maintain his enrolment due to lack of academic progression but did not accept that his visa was cancelled due to circumstances beyond the Applicant’s control.[5]
[4] Outline of Submissions filed by the Minister on 7 January 2025, [24]; Court Book filed by the Minister on 1 December 2021 (CB) 56-57, [15]-[16] and [18].
[5] CB 57-58.
With respect to this ground the Minister submitted that the Tribunal does not have to refer to every piece of evidence nor make the Applicant’s case for him. I also agree with the Minister’s submission that the weight afforded to the Applicant’s claims and evidence was a matter for the Tribunal. The Tribunal’s findings were open to it on the material before it.
The Applicant has not identified a jurisdictional error. Ground 1 must be dismissed.
Ground 2 - In item 23 and 33 of AAT decision record the member did not consider my case in depth in context to my prevailing situation and compelling circumstances from medical issues and surgery.
The Applicant submitted there was no error in paragraph [23] of the Tribunal’s Decision but rather that it was his view that the Tribunal had not considered the reason for his failure to maintain enrolment in detail.
With respect to paragraph [33] of the Tribunal’s Decision the Applicant submitted that the Tribunal incorrectly found that he was not here to study on the mere basis of his period of enrolment. The Applicant submitted that he informed the Tribunal that he passed all his subjects when enrolled at Charles Sturt University and that it was when he changed universities he was the victim of the unfortunate event. The Applicant submitted that the Tribunal should have considered his motivation to finish a degree a compelling reason for him to remain in the country as a student.
The Minister submitted that the Tribunal considered his evidence regarding his finger injury at paragraphs [9], [16] and [23] and did not accept that this injury, considered in conjunction with the other issues raised by the Applicant, were not sufficient reasons to justify the Applicant’s failure to maintain his enrolment or that the grounds for cancellation was beyond his control.
The Minister submitted that the grounds of review at their highest amount to no more than a request for impermissible merits review and must be dismissed.
It cannot be said that the findings were not open to the Tribunal on the evidence before it. I agree with the submissions of the Minister. No jurisdictional error has been identified. Ground 2 must be dismissed.
Ground 3 - Item 32 - the member did not intervene for the education provider without academic progress while the progress, was interrupted for valid reasons and request for deferment was never responded back.
The Applicant conceded in his submission on this ground that there was no identifiable error but that there had not been “much” consideration of his circumstances which he described as compelling and unfortunate by the Tribunal. He also submitted that the Tribunal did not approach the educational institution where he was enrolled.
The Applicant submitted that the Tribunal should have put some emphasis and focus on the educational institutions where he was enrolled to ascertain the reason why he was not enrolled at the relevant time.
The Minister submitted that the Tribunal was under no obligation to make inquiries of the educational institutions. It was always for the applicant to make his case. I agree with this submission. The Applicant has not identified a jurisdictional error. Ground 3 must be dismissed.
Further grounds raised
The Applicant submitted that paragraph [18] of the Tribunal’s Decision did not mention the accident in which he was involved. He further submitted that the Tribunal did not take the accident into consideration and that there was not much emphasis on that.
I asked the Minister to address me on this ground. The Minister submitted that it was not incumbent on the Tribunal to make findings on each piece of evidence and that in any event the Tribunal took the accident into account when considering the material and submissions put by the Applicant although it is conceded that it was not specifically referred to. It was further submitted that it was for the Applicant to satisfy the Tribunal and the Tribunal was not required to accept claims uncritically.
The Tribunal’s Decision makes clear at paragraph [18] that the Tribunal considered the Applicant’s various reasons for not being enrolled, including his injury and the effects of the accident. No error can be identified.
CONCLUSION
I must dismiss the Application for Review as no jurisdictional error has been identified.
The Minister sought costs fixed in the amount of $5,000. This amount is below the scale amount prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Minister’s costs in the sum of $5,000.00.
Orders will be made accordingly.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 6 March 2025
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