Vallala v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 868

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Vallala v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 868

File number(s): SYG 1708 of 2020
Judgment of: JUDGE KAUR-BAINS
Date of judgment: 5 June 2025
Catchwords: MIGRATION –judicial review – student visa –cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) on the basis that the applicant had not complied with a condition of the visa in relation to enrolment in a registered course at the same level or higher level than the registered course in relation to which the visa was granted – whether there was a failure to give “genuine, proper and realistic consideration” to matters relevant to the exercise of the discretion whether to cancel the visa – whether there was a translation issue - no jurisdictional error disclosed
Legislation:

Migration Act 1958 (Cth), ss 116(1)(b), 362B(1A)(b), 476 and 477

Migration Regulations 1994 (Cth), cl 500.611(1)(a) of Schedule 2, conditions 8202(2)(a) and 8202(2)(b) of Schedule 8
Cases cited:

Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230

Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135

BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095

Hamod v New South Wales [2011] NSWCA 375

M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497

SZHEW v Minister for Immigration and Citizenship [2009] FCA 783

SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445
Division: General Federal Law
Number of paragraphs: 41
Date of hearing: 5 June 2025
Place: Sydney
Counsel for the Applicant: appeared in person
Solicitor for the First Respondent: Mr T Qian of Mills Oakley
Second Respondent: submitted appearance save as to costs

ORDERS

SYG 1708 of 2020

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

SIDDHARTHA VALLALA

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KAUR-BAINS

DATE OF ORDER:

5 JUNE 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent is amended to Minister for Immigration and Citizenship.

2.The application is dismissed.

3.The Applicant pay the First Respondent’s costs and disbursements of and incidental to the application fixed in the amount of $6,100.

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 KAUR-BAINS

  1. The applicant, a citizen of India, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 11 June 2020. The issue before the Tribunal was whether the applicant had complied with the condition of his visa and whether in the exercise of its discretion, the visa should be cancelled. The…

Continue reading Vallala v Minister for Immigration and Multicultural Affairs

Sign in free to access the full text

Details
AGLC
Vallala v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 868
Case
[2025] FedCFamC2G 868
Decision Date

CaseChat Overview and Summary

In the matter of Vallala v Minister for Immigration and Multicultural Affairs, the applicant sought judicial review of a decision made by the Tribunal to dismiss an appeal against the cancellation of their student visa. The visa was cancelled under section 116(1)(b) of the Migration Act 1958 (Cth) because the applicant did not comply with a condition of the visa that required them to remain enrolled in a registered course at the same level or higher than the registered course in relation to which the visa was granted. The applicant argued that the Tribunal failed to give genuine, proper and realistic consideration to certain matters relevant to the exercise of the discretion whether to cancel the visa, and that there was a translation issue. The court was required to decide whether the Tribunal had erred in its consideration of the applicant's circumstances and whether there was a translation issue that affected the outcome of the decision.

The court found that the Tribunal had not made a jurisdictional error in its consideration of the applicant's circumstances. The Tribunal had considered the applicant's claim of depression and found it to be unsupported by evidence. The court found that the Tribunal had actively engaged with the applicant's claim of depression and that the consideration given to that claim by the Tribunal was reflected in its reasons. The court also found that the matters raised by the applicant in relation to non-refoulment obligations were not relevant to the decision and that the Tribunal had considered these matters and gave them due consideration. The court found no translation issue that affected the outcome of the decision. Accordingly, the court dismissed the application and found that no jurisdictional error had been disclosed.

The court ordered the applicant to pay costs in the sum of $6,100, which the Minister submitted was less than the actual costs incurred in preparing the Court Book, affidavit of service, submissions and appearing at the hearing. The court found the costs to be fair and reasonable and ordered the applicant to pay them to the Minister. The court noted that the fact that the applicant could not afford to pay the legal costs was not a reason for not ordering the payment of costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant sought to impugn the Tribunal’s reasons and findings on several grounds as set out at [21] of this judgment. For the reasons set out below, I find the applicant has not demonstrated jurisdictional error and I dismiss the application.BACKGROUND The following background to the application is derived from the Minister’s submissions, which I accept, and to which I have made any necessary amendments. On 22 October 2018, the applicant was granted the student visa (Court Book (CB) 17). On 13 November 2019, the Department emailed the applicant a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act (CB 2 to 7). The NOICC informed the applicant that it appeared that he had not complied with condition 8202(2)(b) in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) as required by cl 500.611(1)(a) of Schedule 2 to the Regulations, because the Provider Registration and International Student Management System (PRISMS) records indicated his enrolment in the Master of Engineering in Project Management (Masters), with a Confirmation of Enrolment (CoE) ID of A0D69F21, had been cancelled on 22 March 2019 by the education provider (CB 4). On 19 November 2019, the applicant responded with a one page letter to the Department and an unofficial transcript with two courses of his Masters in Trimester 3 2018 (CB 8 to10). The applicant said the following in the letter:(a)He finished all courses in the first semester, but in his first semester his mother had a serious health condition and needed to undergo surgery.(b)His family spent a lot of money for his mother’s medical treatment and could not provide him with tuition fee for the next semester.(c)His father was a government employee in India and had the benefit of reimbursement for medical bills spent for the family; that the reimbursement process would take 15 months but the applicant could not wait for that long; that he decided to do a diploma course as he would be spending less money than a Masters course.(d)Once he finished the diploma course in May 2020 he would be able to get back on track and enrol in the Masters course again. On 10 December 2019, the delegate cancelled the applicant’s visa pursuant to s 116(1)(b) of the Act for breaching visa condition 8202(2)(b), on the basis that he had not maintained his enrolment in a registered course since 22 March 2019, which once completed would provide a qualification that was at the same Australian Qualifications Framework (AQF) level as or at a higher level than, the registered course in relation to which the student visa was granted (CB 18). The delegate noted that the highest CoE the applicant currently held was for a Diploma of Leadership and Management (Diploma) through Australian Techno Management College Pty Ltd, which was at AQF level 5, four levels below the Masters (CB 19). The delegate found the grounds for cancelling the visa outweighed the grounds for not cancelling it (CB 19 to 21). TRIBUNAL’S DECISION

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I note that the Tribunal at [11] of its reasons refers to the fact that the applicant had breached condition 8202(2)(a), being a condition that required the applicant to remain enrolled in a full time registered course. On a fair reading of the Tribunal’s reasons, it is clear that the reference to condition 8202(2)(a) is a typographical error and ought to have been a reference to non-compliance with condition 8202(2)(b), which was the condition that the applicant had to remain enrolled in a registered course that was at the same level or a higher level than the registered course in relation to which the visa was granted. I find the Tribunal’s reasons disclose at [7], [9] and [10] of its reasons that the Tribunal was aware that the issue was whether the applicant was enrolled in a full-time registered course at the same level for which the visa was granted. CONCLUSION As no jurisdictional error has been disclosed, the application must be dismissed.COSTS In relation to costs, the Minister sought costs in the sum of $6,100, which the Minister submitted was less than the actual costs incurred in preparing the Court Book, affidavit of service, submissions and appearing at the hearing. The applicant said that he had been in Australia for 6 ½ years since the cancellation of the visa. He had no work rights and had been financially dependent on his brother, friends and parents and asked the costs not be ordered. As I explained to the applicant, the fact that he could not afford to pay the legal costs was not a reason for not ordering the payment of costs. Accordingly, I find the costs in the sum of $6,100 fair and reasonable and I order that the applicant pay this sum as costs to the Minister.

Ratio Decidendi

Legal Principle Established

Visa condition 8202(2)(b), attached to the applicant’s visa, required that he maintain enrolment in a registered course at the same level or a higher level than the registered course in relation to which the visa was granted.CONSIDERATIONGround 1 Ground 1 raises the issue of whether the Tribunal failed to give the applicant’s matter proper, genuine and realistic consideration in relation to whether or not to cancel the student visa, given the non-compliance with the visa condition. Before dealing with the ground for judicial review, it is helpful to identify the relevant legal principles that guide this Court in assessing whether there has been "genuine, proper and realistic consideration" of a matter. It is for the applicant to shape the decision-maker's consideration of the evidence: M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1) at [78]. The Tribunal must engage in an "active intellectual process" with the applicant's "significant and clearly expressed representations" (Plaintiff M1, [78]). Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135 at [56] (Basten JA, with whom Leeming JA and Sackville AJA agreed) is authority for the proposition that the required standard of consideration "will depend upon the subject matter and purpose of the consideration, in a given statutory context." The applicant in the particulars contended that the Tribunal failed to give proper consideration to the fact that he had suffered from mental depression on account of his relationship breakdown, which were matters beyond his control. I find the Tribunal at [25] and [26] of its reasons did consider the applicant’s claim of depression. However, the Tribunal found at [26] of its reasons that the claim of depression was unsupported by evidence. The Tribunal can only give consideration to matters raised by the applicant and the evidence provided. The applicant raised the claim of depression in a cursory manner without supporting medical evidence, and I find this reflected the consideration given to that claim by the Tribunal at [26] of its reasons. By doing so, the Tribunal did actively engage with the applicant’s claim of depression. Further, the particulars to ground 1 contended the Tribunal failed to give genuine consideration to the impediments for the applicant’s return to India in the context of non-refoulment obligations. The applicant submitted that he could not go back to India as his parents had spent a lot of money on his studies and he could not tell his parents that he had not continued his studies in his Masters. First, I find that the matters are not relevant to any international obligations, including non-refoulment. Second, I find that the Tribunal did in fact consider these matters at [31] and [32] of the reasons under the heading “Degree of hardship that may be caused (financial, psychological, emotional or other hardship)” and at [33] of its reasons gave these matters due consideration by accepting that a cancellation of a visa would generally result in opportunities lost and disappointment.