Vallala v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 868
•5 June 2025
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
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 Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s Subclass 500 (Student) visa (student visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time set out in s 477 of the Act.
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
The Minister’s submissions accurately set out the Tribunal’s decisions as follows, and I have made any necessary changes.
On 6 February 2020, the applicant did not attend the Tribunal hearing (CB 46 to 48). The Tribunal dismissed the application pursuant to s 362B(1A)(b) of the Act for non-appearance and notified the applicant of the non-appearance decision (CB 49 to 54).
On 20 February 2020, the applicant’s representative requested the Tribunal to reinstate the application, and provided a statutory declaration in support of the applicant’s claim to have been unwell on the day of the hearing (CB 55 to 57). On 1 April 2020, the Tribunal reinstated the application on the basis that it was satisfied the applicant was unable to attend the hearing on 6 February 2020 for medical reasons (CB 63). On 10 June 2020, the applicant’s representative withdrew representation in the matter (CB 69 to 70).
On 11 June 2020, the applicant attended the Tribunal hearing ([3] of its reasons) by telephone with the assistance of a Telugu interpreter (CB 76).
The first issue before the Tribunal was whether the applicant had complied with condition 8202 of the Regulations ([2] of its reasons). The Tribunal found that the applicant’s enrolment in his Masters was cancelled on 22 March 2019 and he was subsequently enrolled in the Diploma on 30 April 2019, which was four levels below the Masters for which his visa was granted ([9] of its reasons). Accordingly, the Tribunal found that the applicant breached condition 8202 because he was not, and had not been, enrolled in a registered course at the level for which the visa was granted since 22 March 2019 ([8] to [9] of its reasons).
The Tribunal then considered whether it should exercise its discretion under s 116(1)(b) of the Act to cancel the applicant’s visa ([12] of its reasons). The Tribunal noted that the Act and the Regulations did not specify mandatory matters to be considered when exercising its discretion to cancel a visa ([12] of its reasons). It had regard to the circumstances of the case, including matters raised by the applicant, and the matters in the Department’s policy guidelines ([12] of its reasons).
The Tribunal took into account the circumstances in which visa conditions were breached and whether they were out of the applicant’s control ([13] to [17] of its reasons). The Tribunal did not accept the circumstances under which the visa cancellation arose, being that the applicant was unable to concentrate because of a relationship breakdown with his girlfriend ([13] of its reasons), were out of the applicant’s control. The applicant said this was the only reason for lowering the level of his course, and he had started the Diploma in April 2019 and had finished it in May 2020 ([14] of its reasons). The Tribunal found that the extent of the applicant’s non-compliance with his visa conditions to be significant because he had not studied at the level required by his visa for over 12 months ([24] of its reasons). The Tribunal found the applicant had no intention to re-enrol in the Masters course ([22] of its reasons). The Tribunal did not accept that the circumstances under which the cancellation arose were out of the applicant’s control or weighed in favour of not cancelling the visa ([17] of its reasons).
The Tribunal did not accept that the applicant was unable to make enquiries or rectify the breach, noting that he was able to complete his Diploma ([26] of its reasons). In the absence of any medical evidence, the Tribunal did not accept the applicant’s explanation that he was unable to rectify the breach because he “was in depression” ([25] of its reasons).
The Tribunal also considered the purpose of the applicant’s travel and stay in Australia. The Tribunal found the applicant had been enrolled in a course below the level for which his visa was granted for a significant period of time ([22] of its reasons). The Tribunal found that the applicant had made no enquiries with educational institutions and indicated that he felt he was not capable of studying at a Masters level ([20] of its reasons). The Tribunal found that the applicant had no intention of returning to studies at the Masters level and had made no attempts to rectify the breach ([22] of its reasons). The Tribunal considered this to be an indication that the purpose of his stay was no longer in line with the original purposes for travel to Australia ([22] of its reasons), being to complete his Masters ([18] of its reasons). The Tribunal gave this weight in favour of cancelling the visa ([23] of its reasons).
Further, the Tribunal considered the financial, psychological, emotional or other hardship that might be caused ([30] to [33] of its reasons). The Tribunal noted that the applicant’s only evidence about hardship was that his mother had a heart attack and his parents did not know about his breakup with his girlfriend or anything that had happened in Australia ([31] of its reasons); and the money that has been spent for him to be in Australia ([32] of its reasons). The Tribunal accepted that generally visa cancellations would result in opportunities lost, disappointments and financial loss but noted that these were expected consequences of visa cancellations ([33] of its reasons). Accordingly, the Tribunal gave these considerations minimal weight.
The Tribunal considered legal consequences of visa cancellation including becoming an unlawful non-citizen ([34] of its reasons), being subject to section 48 bar, being subject to a 3-year bar for certain visas ([35] of its reasons) and potentially being detained until he made arrangements to depart Australia ([34] of its reasons). The Tribunal noted that the applicant retained his passport and raised no reasons that he would be unable to return to India other than being concerned about his parents ([36] of its reasons). The Tribunal considered these as natural consequences of visa cancellation ([36] of its reasons) and gave them minimal weight in favour of the applicant ([37] of its reasons).
In respect of international obligations including non-refoulement and best interests of the children, the applicant provided no reason for being unable to return to India ([38] of its reasons). As such the Tribunal afforded this factor no weight ([38] of its reasons).
The Tribunal accepted that there was nothing to indicate any adverse conduct by the applicant to the Department and gave this some weight in favour of the applicant ([28] of its reasons).
Accordingly, the Tribunal affirmed the delegate’s decision to cancel the applicant’s student visa ([40] of its reasons).
GROUNDS IN THE APPLICATION
The applicant’s application dated 16 July 2020 contained the following grounds for judicial review (as per original):
1. The Tribunal erred in law by failing to give the matter "proper, genuine and realistic consideration" , "to engage in an active intellectual process" and to provide reasonable opportunity to the applicant. This resulted in miscarriage of justice.
Particulars
The applicant's representative withdrew from the matter before the hearing and applicant represented himself at the time of AAT hearing The applicant was never asked if he needs to have the hearing adjourned as his representative had withdrawn or that he could seek an adjournment so that he can be assisted by some other person . Failure to provide reasonable opportunity to the applicant resulted in violation of the principles laid down in Minister of Immigration and Citizenship Vs Li (2013 HCA 18) in relation to matters relating to adjournment
The applicant was never questioned by the Tribunal about the impediments for his return to home country in the context of non refoulment obligations under the international law . It was simply assumed by the Tribunal that there is no impediment for his return to the home country. The applicant further stated that he was suffering from mental depression on account of a relationship breakdown with his partner for reasons beyond his control and all these evidence were not given a proper appreciation as required in law and simply brushed aside without the Tribunal engaging in active intellectual process is discerning the nature of the evidence adduced. It is submitted that the Tribunal failed to appreciate the evidence in an intelligible manner after providing proper consideration as required in Federal Court Judgement in CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190 (23 December 2019). The failure [sentence incomplete]
2. The Tribunal erred in law in relying on translated version which was erroneous and faulty on several occasions in relation to material matters.
Particulars
The applicant was self represented at the time of hearing. The applicant is an Indian citizen and his mother tongue is Telugu The applicant came to Australia in Oct 2019 and has a very limited knowledge of English. and that is one of the reason that he could not complete his studies . As the interview proceeded the applicant found it difficult to understand the questions and the translator was also not correctly expressing the contents of the questions raised by the Tribunal . As the applicant found it difficult to comprehend the questions raised by the Tribunal the answers may have been less than satisfactory. . This affected the fairness in the decision making process and the ability to correctly understand and answer the questions involved.
PROCEEDINGS BEFORE THE COURT
The applicant appeared at the hearing before me as a litigant in person, assisted by a Telugu interpreter. Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445 at [37]), I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application, supporting affidavit of the applicant and the Minister’s written submissions. The applicant’s supporting affidavit was accepted as submissions.
I explained to the applicant he needed to explain to me what the Tribunal legally did wrong, so I could consider whether the matter should be remitted to the Tribunal to reconsider. The applicant was also told that this Court could not engage in merits review or grant him a student visa.
The applicant said the mistake he made was that he had a breakup with his girlfriend and as a result could not concentrate on his Masters. At that time, his friends and roommates suggested that he change to another course below the Masters level and that was the reason he changed his course to a Diploma. He asked for another chance to enrol in a Masters course and to complete his studies. I explained to the applicant that as sympathetic as I may be to his situation, I had no power to decide whether to grant him another visa. I explained again to the applicant that the student visa had been cancelled by the Tribunal and my power was limited to considering the Tribunal’s decision and identifying whether the Tribunal had committed jurisdictional error.
RELEVANT LAW
Relevantly, at the material time, the Act provided as follows:
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; or
…
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.
CONSIDERATION
Ground 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.
The particulars to ground 1 also raised whether the Tribunal failed to offer the applicant natural justice and should have asked the applicant whether he needed to adjourn his hearing or needed to appoint a new representative. At the hearing before me, the applicant submitted that he had not in fact sought an adjournment from the Tribunal. In light of the fact that no request was made for an adjournment and reasons produced, I find there was no reason why the Tribunal would offer the applicant an adjournment.
Accordingly, I find no jurisdictional error is disclosed in relation to ground 1.
Ground 2
Ground 2 takes issue with translation issues at the hearing before the Tribunal and that the applicant did not understand the Tribunal’s questions and the interpreter did not interpret the questions correctly, therefore the applicant’s answers may have been less than “less satisfactory”.
To succeed on this ground, the applicant would need to establish by way of evidence that the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence to the Tribunal, or that the interpretation errors were material to the conclusion of the Tribunal and adverse to the applicant: Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [17] per Mansfield, Emmett and Selway JJ. This “involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole”: SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] per Jagot J.
At the hearing before me, when the applicant was asked what the translation issues were, he said that when asked by the Tribunal whether he had changed his course or continued with the course, he answered he continued with the course, whereas he should have said he changed the course.
I note that the Tribunal at [9], [13] and [14] of the reasons noted that the applicant had changed his course on 30 April 2019 from a Masters to a Diploma of Leadership and Management. The applicant’s submissions are difficult to understand in light of these findings, given that the Tribunal’s reasons recorded that the applicant had given evidence that he had changed the course. Despite being given an opportunity by me, the applicant could not identify any other translation issues. Accordingly, I find that no jurisdictional error is disclosed in relation to ground 2.
SELF-EVIDENT JURISDICTIONAL ERROR
Given the applicant was self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]. I have not identified any such jurisdictional error.
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.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 6 June 2025
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