Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 807
•30 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 807
File number: MLG 3592 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 30 May 2025 Catchwords: MIGRATION – Student visa cancellation – decision of the then Administrative Appeals Tribunal – extension of time request – minimal delay – no prejudice – inadequate explanation provided – no arguable case of jurisdictional error – extension of time refused. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16
Migration Act 1958 (Cth), ss 116 & 477
Migration Regulations 1994 (Cth), Condition 8202 in Schedule 8
Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
BZAFV v Minister for Immigration and Border Protection [2014] FCCA 2808
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Lee v Minister for Immigration and Multicultural Affairs [2005] FCA 464
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
NAKX v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 1559
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 99 Date of hearing: 19 February 2025 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr G Rossi Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 3592 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABHIDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
30 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) (as amended on 19 February 2025) be dismissed.
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 KENDALL:
BACKGROUND
Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 22 October 2018 and thus predates those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
At the time that the applicant made an application to this Court (on 28 November 2018), the Tribunal was listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything that the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, this Court made an order (at the hearing of the application for an extension of time in this matter held before this Court on 19 February 2025) substituting the ART as the second respondent in this proceeding.
The applicants’ migration history
The applicant in this matter is a citizen of India (Court Book (“CB”) 16 & 22).
The applicant was granted a granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (the “visa”) on 27 May 2014 (CB 2) and was initially enrolled in Diploma and Bachelor of Information Technology courses (from 7 July 2014 to 3 July 2015) (CB 31-32).
The applicant’s Provider Registration and International Student Management System (“PRISMS”) records indicate that the applicant was granted a deferment of his enrolment in the Diploma course due to “compassionate or compelling circumstances”. The applicant’s PRISMS records also show that the applicant’s enrolment in the Bachelor course was cancelled for “non-commencement of studies” in August 2015 (CB 32).
The applicant subsequently enrolled in Certificates III and IV in Commercial Cookery and a Diploma of Hospitality. However, his enrolment in those courses was also cancelled on 19 February 2016 (again for the “non-payment of fees”) (CB 32).
On 31 January 2017, the then Department of Immigration and Border Protection (the “Department”) sent the applicant a “Notice of Intention to Consider Cancellation” letter (the “NOICC”) under s 116 of the Act (via email) (CB 1-7). The NOICC referenced a breach of Condition 8202(2)(a) in Schedule 8 of the Migration Regulations 1994 (Cth) (the “Regulations”), noting that the applicant had “not been enrolled in a registered course of study since 19 February 2016” (CB 3).
On 7 February 2017, the applicant provided a response to the Department (by email) (CB 8-9). Essentially, the applicant claimed that he:
(a)was unable to maintain his enrolment because his family could not send him financial support as they had “spent a huge amount of money on [his] sister’s wedding”;
(b)had attempted to find work in Melbourne to pay for his tuition fees but was unable to do so and had moved to Sydney to live with a friend who had also arranged a job for him (in Sydney);
(c)had attempted to change his study to a Sydney college but they required that he study five days per week which he could not commit to due to his work requirements;
(d)had tried to maintain his studies by attending classes whenever he came to Melbourne;
(e)believed his friend who told him that if he could change colleges, he would not have to pay the fees due;
(f)had deep remorse for not maintaining his enrolment but he had gone through a financial crisis;
(g)genuinely intended to study in Australia but was unable to maintain his study requirements; and
(h)had a very strong intention to complete his studies in Australia and did not have any plans to “circumvent Australian rules”.
On 8 February 2017, the applicant’s visa was cancelled by a delegate of the first respondent (the “Minister”) (CB 16-21). The delegate was satisfied that there was a ground for cancellation because the applicant had not been enrolled in a registered course of study since 19 February 2016 (CB 17). The delegate then considered whether the applicant’s visa should be cancelled and accepted that the applicant “may not have had access to finances to continue studying”, however, there had been “no attempt on his part to resolve his situation by re-enrolling himself in an approved course of study” or by seeking deferral of his studies from his education provider (CB 20). The delegate was ultimately satisfied that there was a ground for cancelling the applicant’s visa and that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa (CB 21).
The applicant was notified of the visa cancellation by email on 8 February 2017 (CB 10-15).
On 10 February 2017, the applicant sought review of the delegate’s decision by the Tribunal (CB 22-23).
On 25 September 2018, the Tribunal invited the applicant to attend a hearing before it, scheduled to take place on 17 October 2018 (CB 34-40).
On 17 October 2018, the applicant appeared at the Tribunal hearing to give evidence and present arguments (CB 44-45). The applicant was assisted at that hearing by a Hindi interpreter (CB 44).
On 22 October 2018, the Tribunal affirmed the delegate’s decision cancelling the applicant’s visa (CB 51-58). The Court notes that the date of the Tribunal’s decision reads “2918”, however, the Court considers this to be no more than a typographical error. The Court also notes that the signatory clause on the cover of the Tribunal’s decision included the correct date of 22 October 2018 (CB 51).
That same day (being 22 October 2018), the applicant was notified of the Tribunal’s decision via email (CB 46-50). The Tribunal’s notification letter detailed how the applicant could seek review of the Tribunal’s decision. Relevantly, the Tribunal’s notification letter stated (CB 49):
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
On 28 November 2018, the applicant applied to the then Federal Circuit Court of Australia (the “FCCA”) for judicial review of the Tribunal’s decision (CB 59-64). Unfortunately, that application was filed two days outside of the 35-day time limited specified in s 477 of the Act.
In the circumstances, the applicant requires an extension of time to pursue the substantive proceeding.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, this Court has concluded that an extension of time should not be granted.
CONSIDERATION
The materials before the Court include the application for judicial review (including an application for extension of time within which to make that application) and supporting affidavit filed by the applicant on 28 November 2018, a court book numbering 76 pages (marked as Exhibit 1 at the hearing of the application for an extension of time in this matter) and written submissions filed on behalf of the Minister on 5 February 2025.
On 6 October 2020, procedural orders were made by Registrar Carlton in the then FCCA giving the applicant an opportunity to file an amended application, any supplementary court book and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant appeared before this Court (by video link) on 19 February 2025 without legal representation. Mr Gianluca Rossi (“Mr Rossi”) from Mills Oakley (solicitor for the Minister) appeared at the extension of time hearing on behalf of the Minister (also by video link). The Court confirmed with the applicant that he had received a copy of the CB and Minister’s written submissions.
The Court noted that the applicant’s judicial review application only sought relief by way of an order “quashing the Tribunal’s decision”. It did not seek “a writ of mandamus”. As such, this Court’s jurisdiction was not properly invoked. The Court explained this issue to the applicant and, with his agreement, made an order amending the application for judicial review to include a request for a writ of mandamus. Mr Rossi (for the Minister) did not object to that course of action.
Noting that the applicant was not legally represented, the Court explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. In this matter, the Tribunal’s decision was made on 22 October 2018. The date by which the applicant was required to file his application in this Court was 26 November 2018. Unfortunately, the applicant did not file his substantive application until 28 November 2018.
As noted above, the delay here is two days.
The Court explained that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided a “ground” explaining why he believed that the extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting that the applicant appeared without any legal assistance, the Court explained to him that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (“Hunter Valley”) (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level” only: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
The Court invited the applicant to highlight anything he considered relevant to his request for an extension of time. The applicant’s responses will be discussed in the consideration that follows.
Length of delay
The Court notes that an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As outlined above, the delay in this matter is only two days.
This delay is minimal and weighs in favour of granting an extension of time.
Prejudice
In written submissions filed in this Court, the Minister conceded that there is no prejudice to the Minister but submitted that the absence of any such prejudice alone would not warrant the grant of an extension of time: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [31]; BZAFV v Minister for Immigration and Border Protection [2014] FCCA 2808 at [4]-[5] and Hunter Valley at [21].
The Court agrees that Minister would not face any prejudice if the extension were granted.
This also weighs in favour of granting the extension of time.
Explanation
In his judicial review application, the applicant provides one ground for the extension of time which, relevantly, provided as follows (without alteration):
1.I was sick and hence could not do it on time but I am trying to get a medical certificate from GP, need time to provide that.
The applicant raised similar concerns to those outlined above in oral submissions before this Court. In particular, the applicant told the Court that he was “a little sick at the time” and did not know how to drive so he needed to “take two trains to get there”. The applicant also claimed that he was being helped by a friend who told him to “just ask for an extension of a day or two and the Court will help you”. The applicant noted that his friend “was not very experienced”.
As outlined above, the applicant claimed to have been unwell and, for that reason, he was unable to file his judicial review application “on time”. The Court notes, however, that no medical evidence was provided in support of that claim. Such medical evidence is required: NAKX v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 1559 at [6]; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[49].
Further, while the applicant may have been “a little sick”, he did not claim to have had any long-term health issues that he was being treated for that affected his ability to make an application to this Court within the statutory timeframe (which was 35 days or five weeks from the date of the Tribunal’s decision).
The Court does not consider the explanation for the delay in filing the application to be satisfactory.
This weighs against granting an extension of time.
Merits
Arguably, the most critical factor for consideration when determining if an extension of time ought to be granted is whether the proposed substantive application, viewed at an impressionistic level only, has any “arguable prospect of success”.
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the applicant in this matter was unrepresented, the Court gave him an opportunity to outline any concerns that he might have in relation to the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to him that the only issue before the Court is whether there is “an arguable case” that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or reinstate the applicant’s cancelled visa. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that he did not think that the Tribunal made a mistake. He explained that, at the time, he was “overrun with things”, noting that his grandfather had passed away and he was a little immature at that time. The applicant described being in an emotional state because he was only twenty years of age and he and his grandfather were very close. The applicant also offered to provide the Court with “proof of [his] grandfather’s death”.
Unfortunately, the applicant’s comments do not raise any issue of jurisdictional error of the sort that this Court can address.
This leaves the Court to assess the applicant’s grounds of review without further assistance from the applicant. Noting that the applicant did not have legal assistance, the Court will, in its duty to the applicant as an unrepresented litigant, review the Tribunal’s decision itself and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB.
The Tribunal’s decision
In determining whether there is an arguable case of error, it is useful to first detail the Tribunal’s decision.
The Tribunal’s decision in this matter is eight pages in length and spans 37 paragraphs (CB 51-58). The final page contains a relevant extract from the Regulations (CB 58).
The Tribunal began by explaining that the applicant had been granted the visa on 27 May 2014 to study in Australia and that a delegate of the Minister had cancelled that visa on 8 February 2017 because the applicant had breached Condition 8202(2) in Schedule 8 of the Regulations. The Tribunal confirmed that the applicant had sought review of the delegate’s decision and noted that the applicant had appeared at a hearing before it (on 17 October 2018) to give evidence and present arguments (with the assistance of a Hindi interpreter) (at [1]-[5]).
The Tribunal identified that the issue before it was whether the applicant had breached Condition 8202 in Schedule 8 of the Regulations and, if so, whether the applicant’s visa should be cancelled (pursuant to s 116(1) of the Act). The Tribunal also set out the requirement to maintain enrolment in a registered course of study (at [7]-[8]).
The Tribunal confirmed that it had put the alleged breach (being that the applicant had not been enrolled in a registered course of study since 19 February 2016) to the applicant at the hearing before it and noted that the applicant had confirmed that that information was correct. The Tribunal found that the applicant was not enrolled in a registered course and, as such, had not complied with Condition 8202(2) in Schedule 8 of the Regulations (at [9]-[10]).
Having found that the applicant had not complied with a condition of the visa, the Tribunal acknowledged that it was required to consider whether the applicant’s visa should be cancelled. The Tribunal explained that, while there were no matters specified in the Act or Regulations that must be considered in the exercise of its discretion, it had had regard to the circumstances of the case (including information and evidence given by the applicant at the Tribunal hearing and matters outlined in the Department’s Procedures Advice Manual (“PAM3”)) (at [11]-[13]).
The Tribunal first considered the purpose of the applicant’s travel to and stay in Australia and whether he had a compelling need to travel to or remain in Australia. The Tribunal noted that the applicant was initially enrolled in a Diploma of Information Technology and a Bachelor of Information Technology which he commenced in July 2014. The Tribunal detailed the applicant’s evidence that he had returned to India in February 2015 to attend his sister’s wedding and deferred his remaining subjects, intending to complete them upon his return. The applicant also told the Tribunal that, while he was in India, his grandfather passed away and that affected his emotional well-being. The Tribunal noted that the applicant never completed the last two subjects required for the Diploma of Information Technology, however, at that same time, the College was requesting further payment from the applicant (which he could not pay). The applicant told the Tribunal that the College cancelled his enrolment without any formal notification and the applicant indicated that the cancellation was not unexpected (noting that he had not been attending classes and had not paid his course fees) (at [14]-[15]).
The Tribunal acknowledged that the applicant had subsequently enrolled in a commercial cooking course but did not have the financial capacity to pay and did not attend any classes. The Tribunal reproduced the applicant’s response to the NOICC in which the applicant stated that the commercial cookery course was in Melbourne and that the applicant had moved to Sydney because he was unable to find work in Melbourne. However, the applicant’s response also noted that he could not change to a Sydney college as most colleges required five days of study which the applicant could not commit to as he needed to work. However, the applicant attended classes whenever he came to Melbourne (at [16]-[18]).
The Tribunal gave some weight in favour of the applicant given he did commence his Diploma of Information Technology, deferring the last two subjects pending his return from India. However, the Tribunal found that, given the significant period of time during which the applicant was not enrolled, together with the fact that he did not inform the Department or his course provider that he did not intend to complete the course, those considerations outweighed any weight given in favour of not cancelling this visa (at [19]).
In considering the extent of the applicant’s compliance with visa conditions, the Tribunal gave minimal weight to the fact that there appeared to be no additional breaches (at [20]).
The Tribunal then considered the degree of hardship that may be caused if the applicant’s visa were cancelled and the applicant’s claims about his emotional state following the death of his grandfather. However, the Tribunal noted that the applicant was unable to provide any supporting documentation from witnesses or any medical evidence to support those claims. The Tribunal placed minimal weight on the applicant’s claimed emotional issues. The Tribunal acknowledged that a cancellation would cause some disappointment and hardship in returning to the applicant’s family in India, however, the Tribunal gave more weight to the significance of the breach than to the hardship potentially caused by the applicant returning home (at [21]-[24]).
In considering the circumstances in which the ground of cancellation arose, the Tribunal noted that it had some sympathy for the effect that the death of the applicant’s grandfather had on him, along with the financial constraints he experienced in paying for the outstanding course fees. However, the Tribunal explained that the applicant had confirmed his understanding of the requirements of the student visa and his obligations. The Tribunal also noted that the applicant gave evidence that he was not surprised that his enrolment had lapsed following his non-attendance and failure to pay course fees. The Tribunal also noted that the applicant provided no supporting documentation to suggest that he made any attempt to resolve those issues with his course provider. The Tribunal also considered that the applicant had a responsibility to continue studying or to inform the Department and return home if he could not do so (at [27]-[28]).
The Tribunal accepted the claims that the applicant was experiencing financial difficulties which were now resolved but noted that he had not provided any supporting documentation to indicate that he could pay for the entirety of a future course. The Tribunal gave limited weight to the reasons provided by the applicant and more weight to the period in which the applicant was not enrolled in a registered course (being in excess of two years and eight months). As such, the Tribunal found that those considerations outweighed any weight given in favour of the applicant and not cancelling the visa (at [29]-[30]).
The Tribunal considered the past and present behaviour of the applicant towards the Department and noted that there was nothing to indicate that he had not cooperated with the Department or itself. However, the Tribunal noted that this was expected of all visa holders and should not outweigh the significance of the breach (at [31]).
The Tribunal found that it was unlikely that the applicant would be detained if his visa were cancelled and would instead be provided with a limited period of time to leave the country or to seek review. The Tribunal also found there was nothing to indicate that there were any international obligations to consider (at [32]-[33]).
The Tribunal noted that the applicant had responded to the NOICC and appreciated that an education in Australia may enhance the applicant’s career. However, the Tribunal explained that if this were not achieved, it did not prevent the applicant from undertaking study in India. The Tribunal considered the applicant’s statements but found the breach to be significant. The Tribunal noted that the applicant was bound by his visa conditions but made no attempt to inform the Department or rectify the situation. The Tribunal placed significant weight on the length of the breach (being in excess of two years and eight months) and found the length and significance of the breached outweighed the applicant’s explanations. Having considered all of the applicant’s circumstances, individually and cumulatively, the Tribunal concluded that the applicant’s visa should be cancelled (at [34]-[36]).
The Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [37]).
Proposed application for judicial review
The application for judicial review (filed by the applicant on 28 November 2018) contained three proposed “grounds of review” as follows (without alteration) (CB 62):
1.I wish to seek judicial review on the basis to challenge s.116(1)(b) of the Migration Act 1958 (the Act), as period of non enrolment was due to compelling reasons due to which I had to travel overseas and evidence was not fully considered by the Review Member.
2.Secondly as per Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant: be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2); the honourable member did find out that I did commence my Diploma of Information Technology, deferring the last two subjects, pending my return for my sister’s wedding in India; hence this circumstances outweighs the requirement of condition 8202 as i did all efforts to regularise my enrolment.
3.Thirdly as per ministerial direction 69, I have proof to support the emotional claim of my grandfather’s death and financial capability of my family to support my study further; so please give me a chance to get judicial review of the decision given by AAT.
Proposed ground one
As outlined above, proposed ground one provided as follows:
1.I wish to seek judicial review on the basis to challenge s.116(1)(b) of the Migration Act 1958 (the Act), as period of non enrolment was due to compelling reasons due to which I had to travel overseas and evidence was not fully considered by the Review Member.
By proposed ground one, the applicant appeared to suggest that the Tribunal failed to properly consider his “compelling reasons” for needing to travel overseas.
This fails on a factual level.
The Tribunal confirmed that the applicant had returned to India in February 2015 in its written reasons and highlighted the reasons for him doing so, as follows (emphasis added):
14.The applicant is an Indian national who is 23 years and 8 months of age. He first travelled to Australia in June 2014 with the intent to study and enrolled in a Diploma of Information Technology and a Bachelor of Information Technology which he commenced in July 2014. He submitted to the Tribunal that he returned to India in February 2015 to attend his sister’s wedding, and deferred the remaining subjects, with the intent to complete them on his return to Australia. During his time in India, his grandfather passed away, an event that he claims affected his emotional wellbeing. He told the Tribunal that he did not wish to return to Australia because of his emotional state and only did so under the strong direction of one of his parents.
As can be seen from the passage above, the Tribunal was aware that the applicant had returned to India for the purpose of attending his sister’s wedding but acknowledged that, whilst the applicant was in India, his grandfather had passed away. The Tribunal then expressly considered the death of the applicant’s grandfather and the impact of the death on the applicant’s emotional well-being, as follows (emphasis added):
21.The applicant explained at the hearing the significance of having an Australian qualification and the opportunities this provides in India. He outlined the status accorded to an Australian qualification in seeking employment in India and the influence of his family on him to pursue his studies in Australia. The applicant told the Tribunal that he did not wish to return to Australia to complete his Diploma following the death of his grandfather, when he was in India for his sister’s birthday. He claims to have been in an emotionally fragile state and returned due to the strong encouragement from one of his parents.
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24.The Tribunal has considered the applicant’s claims about his emotional state following the death of his grandfather and notes that the applicant was unable to provide any supportive documentation from witnesses or medical advice to support these claims. Given that these have not been provided the Tribunal places minimal weight on the emotional issues claimed by the applicant. The Tribunal appreciates that a cancellation would cause some disappointment and hardship in returning to his family in India, as indicated in the applicant’s submission. However the Tribunal gives more weight to the significance of the breach than the hardship potentially caused to the applicant in returning home to India.
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27.The Tribunal has some sympathy with the affect that his grandfather’s death had on him, along with the financial constraints he experienced in paying for the outstanding course fees. However the applicant confirmed to the Tribunal his understanding of the requirements of the student visa and the obligations imposed on him with the visa he had been granted and stated that he was not surprised that his enrolment had lapsed following his non attendance and lack of payment. The applicant provided no supporting documentation to suggest that he had made any attempt to resolve these issues with the course provider.
28.The Tribunal has carefully considered the circumstances around which the visa was cancelled and whilst it is not unsympathetic with the claimed emotional state of the applicant and the constrained financial circumstances, notes that the applicant has indicated his understanding of the visa requirements. The Tribunal appreciates that the death of a grandparent affecting close family members can be a difficult time for people of any age, the applicant had a responsibility to continue studying, or alternatively, inform the department and return home if he was unable to do so.
29.The Tribunal gives some weight to the applicant’s situation pertaining to the loss of his grandfather that caused emotional stress on a day to day basis combined with his financial difficulties that meant that he could not fund the deferred subjects. Whilst the Tribunal accepts the claims that the applicant was experiencing financial difficulties which are now resolved, he has provided no supporting documentation to indicate that he can pay for the entirety of any future course.
As can be seen from the passages above, the Tribunal considered the impact of the death of the applicant’s father on him and the effect it may have had on his emotional state. Any suggestion from the applicant that the Tribunal failed to consider that information is not evident on the information before this Court.
To the extent that the applicant suggested that the Tribunal did not give those matters “sufficient weight”, the Court notes that it is well established that the Tribunal is entitled to accept, reject or give such weight to the evidence submitted as it deems appropriate in the circumstances: Lee v Minister for Immigration and Multicultural Affairs [2005] FCA 464 at [27]. Further, the degree of weight to be given to the evidence is a factual question for the decision maker alone: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 (“SZJSS”) at [33] and Abebe v Commonwealth of Australia [1999] HCA 14 (“Abebe”) at [197] per Gummow and Hayne JJ.
No arguable case of jurisdictional error arises in relation to proposed ground one.
Proposed ground two
Proposed ground two stated:
2.Secondly as per Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant: be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2); the honourable member did find out that I did commence my Diploma of Information Technology, deferring the last two subjects, pending my return for my sister’s wedding in India; hence this circumstances outweighs the requirement of condition 8202 as i did all efforts to regularise my enrolment.
To the extent that the applicant suggested that he was not enrolled for a period of time and then “regularised” his enrolment, this also fails on a factual level.
The applicant confirmed that he had not been enrolled in a registered course of study as required. The Tribunal recorded this information in its written reasons as follows (emphasis added):
9.In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was invited to respond to the NOICC on the 31 January 2017 and responded to the delegate on the 7 February 2017. At the hearing the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant and reference was made to the delegate’s decision record that indicated that he had not been enrolled in a registered course of study since 19 February 2016. The applicant confirmed that this was correct and did not dispute that he was not enrolled in a registered course of study from that time.
The Tribunal noted that the applicant was also aware of his study obligations and was “not surprised” that his enrolment had lapsed given his “non attendance and lack of payment” of course fees (at [27]).
The Tribunal also reproduced the applicant’s response to the NOICC (as provided by the applicant to the Department). In that response, the applicant again confirmed that, while he had “attempted to collect money” to pay his course fees, the “deadline of enrolment” had passed and his enrolment was cancelled by the College (at [18]).
Condition 8202(2)(a) in Schedule 8 of the Regulations required that the applicant be “enrolled in a registered course” of study. On the applicant’s own evidence (given to the Tribunal at the hearing before it and outlined in his response to the NOICC), he was not.
As outlined above, the Tribunal had regard to the circumstances which led to the cancellation of the applicant’s visa (including the death of his grandfather and the impact that had on his studies) but ultimately gave more weight to the seriousness of the breach (given the length of time that the applicant was not enrolled in a course of study) (see, for example, paragraphs [24], [31] & [35] of the Tribunal’s reasons).
To the extent that the applicant again took issue with the weight the Tribunal gave to any particular consideration or suggested that the Tribunal ought to have given less weight to the length of time that the applicant was not enrolled, the Court again notes that (as outlined above in relation to proposed ground one), the weight given to any evidence is a factual question for the decision maker (in this case the Tribunal) alone: SZJSS at [33] and Abebe at [197].
No arguable case of jurisdictional error arises in relation to proposed ground two.
Proposed ground three
Proposed ground three provided as follows:
3.Thirdly as per ministerial direction 69, I have proof to support the emotional claim of my grandfather’s death and financial capability of my family to support my study further; so please give me a chance to get judicial review of the decision given by AAT.
By proposed ground three, the applicant seemed to suggest that he had evidence (or could have provided evidence) regarding the emotional impact of his grandfather’s death and the applicant’s family’s ability to support him financially. Unfortunately, no such evidence was provided to the Tribunal.
The Court notes that the Tribunal expressly referenced this lack of corroborating evidence in its reasons as follows (emphasis added):
24.The Tribunal has considered the applicant’s claims about his emotional state following the death of his grandfather and notes that the applicant was unable to provide any supportive documentation from witnesses or medical advice to support these claims. Given that these have not been provided the Tribunal places minimal weight on the emotional issues claimed by the applicant. The Tribunal appreciates that a cancellation would cause some disappointment and hardship in returning to his family in India, as indicated in the applicant’s submission. However the Tribunal gives more weight to the significance of the breach than the hardship potentially caused to the applicant in returning home to India.
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29.The Tribunal gives some weight to the applicant’s situation pertaining to the loss of his grandfather that caused emotional stress on a day to day basis combined with his financial difficulties that meant that he could not fund the deferred subjects. Whilst the Tribunal accepts the claims that the applicant was experiencing financial difficulties which are now resolved, he has provided no supporting documentation to indicate that he can pay for the entirety of any future course.
To the extent that this evidence was not before the Tribunal, as correctly submitted by the Minister, this goes to the merits of the case and cannot establish an arguable case of jurisdictional error on the part of the Tribunal.
As outlined above in relation to proposed ground one, the Tribunal had regard to the death of the applicant’s grandfather in its written reasons (at multiple points throughout its decision). The Court also notes that the Tribunal had regard to the financial difficulties that the applicant was facing (see, for example, paragraphs [25] and [29] of the Tribunal’s written reasons). However, the Tribunal ultimately placed more weight on the significance of the applicant’s breach (noting that the period of non-enrolment extended to in excess of two years and eight months) (see, for example, paragraph [30] of the Tribunal’s reasons).
Further, as outlined by this Court above, the weight given to any evidence is a factual question for the decision maker (in this case the Tribunal) alone: SZJSS at [33] and Abebe at [197].
No arguable case of jurisdictional error arises in relation to proposed ground three.
Conclusion regarding merits of the substantive application
The applicant’s proposed grounds of review, assessed at an “impressionistic level” only, do not identify any arguable case of jurisdictional error on the part of the Tribunal.
This weighs heavily against the granting of an extension of time.
CONCLUSION
The lack of a satisfactory explanation for the delay and the lack of any arguable case of jurisdictional error on the part of the Tribunal (judged at a reasonably impressionistic level only) are such that it is not in the interests of the administration of justice for the Court to grant the applicant an extension of time in this matter.
The application for an extension of time is, accordingly, refused.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 May 2025
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