Virk v Minister for Immigration and Citizenship

Case [2025] FCA 630

FEDERAL COURT OF AUSTRALIA

Virk v Minister for Immigration and Citizenship [2025] FCA 630

Appeal from: Virk v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 434
File number(s): VID 456 of 2023
Judgment of: HILL J
Date of judgment: 17 June 2025
Catchwords:

MIGRATION – application for a student visa – First Appellant was not enrolled in a course and accordingly did not have a certificate of enrolment at the time of Administrative Appeals Tribunal hearing – First Appellant sought an adjournment to allow her to obtain a certificate of enrolment – whether the Tribunal overlooked material provided in support of adjournment request – whether the Tribunal’s refusal to grant an adjournment was legally unreasonable – whether any other jurisdictional error – no jurisdictional error in Tribunal’s decision nor error in decision of primary judge

APPEAL AND NEW TRIAL – where the Appellants sought to rely on grounds of review not put at first instance – leave refused because new arguments lack any merit

PRACTICE AND PROCEDURE – adjournment sought day before scheduled hearing – formulaic medical certificate did not provide sufficient basis for adjournment – adjournment refused

Legislation:

Federal Court of Australia Act 1976 (Cth), s 43(3)(d)

Migration Act 1958 (Cth), s 359A(1)

Federal Court Rules2011 (Cth), r 40.02(b), Sch 3 item 15

Migration Regulations 1994 (Cth), Sch 2, cl 575.223
Cases cited:

Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93; (2022) 182 ALD 176

BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 531

Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335

COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112

DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344

Dharma v Minister for Home Affairs [2019] FCA 431; (2019) 78 AAR 10

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177

FQV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 225

Gulati v Minister for Immigration and Border Protection [2017] FCA 255

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610

Matson v Attorney-General (No 2) [2022] FCA 213

Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431

Minister for Immigration and Border Protection v Pandey [2014] FCA 640: (2014) 143 ALD 640

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

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR…

Continue reading Virk v Minister for Immigration and Citizenship

Sign in free to access the full text

Details
AGLC
Virk v Minister for Immigration and Citizenship [2025] FCA 630
Case
[2025] FCA 630
Decision Date

CaseChat Overview and Summary

Virk v Minister for Immigration and Citizenship concerns a family's appeal against the refusal of a student visa. The First Appellant, Mrs Virk, applied for a student visa on the basis of her enrolment in a Diploma of Hospitality Management. The other Appellants, her husband and two children, were included in the application as secondary applicants. The delegate of the Minister for Immigration and Citizenship refused to grant the Appellants student visas. The Appellants applied to the Administrative Appeals Tribunal (AAT) for review of the delegate's decision. The Tribunal affirmed the delegate's decision, finding that Mrs Virk did not meet the enrolment requirements for a student visa. The Appellants then sought judicial review of the Tribunal's decision in the Federal Circuit Court. The primary judge dismissed the Appellants' application, finding no jurisdictional error in the Tribunal's decision. The Appellants appealed to the Federal Court.

The key legal issues were whether the Tribunal overlooked material provided in support of the Appellants' adjournment request, whether the Tribunal's refusal to grant an adjournment was legally unreasonable, and whether there was any other jurisdictional error. The Appellants argued that the Tribunal did not properly consider their medical evidence and psychologist's report in denying the adjournment request. The Appellants also argued that the Tribunal's refusal to adjourn the hearing was legally unreasonable. The Appellants submitted that the Tribunal's decision contained a jurisdictional error. The Federal Court found no merit in the Appellants' arguments. The Court held that the Tribunal properly considered the Appellants' medical evidence and psychologist's report in denying the adjournment request. The Court also found that the Tribunal's refusal to adjourn the hearing was not legally unreasonable. The Court held that there was no jurisdictional error in the Tribunal's decision.

The appeal was dismissed, with the Appellants ordered to pay the Minister's costs. The Court held that the Appellants' adjournment request was properly denied as the medical certificates did not establish that Mrs Virk was unfit to attend the hearing. The Court also held that the Tribunal properly considered the Appellants' evidence and submissions. The Court found no merit in the Appellants' arguments that the Tribunal's refusal to adjourn the hearing was legally unreasonable or that there was any other jurisdictional error.

Orders

Orders of the court

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

2. The name of the Second Respondent is amended to “Administrative Review Tribunal”.

3. The appeal is dismissed.

4. The Appellants pay the First Respondent’s costs, fixed in the sum of $4,200.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the following reasons, the appeal should be dismissed with costs.BACKGROUND Arrival in Australia (Nov 2007): The First Appellant (Mrs Virk) is an Indian citizen who arrived in Australia in 2007 as the holder of a Student (Subclass 573) visa. The Second Appellant (Mr Gill) is her husband, and the Third and Fourth Appellants are their children (a daughter and a son) (J [2]). Application for visa (Oct 2015): On 12 October 2015, Mrs Virk applied for a student visa as the main applicant, on the basis of her enrolment in a Diploma of Hospitality Management (J [3]). The other Appellants were included in this application as secondary applicants. Delegate refuses visa (Jun 2016): On 23 June 2016, a delegate of the First Respondent (the Minister) refused to grant the Appellants student visas. The delegate was not satisfied that Mrs Virk met cl 572.223(1)(a) of Sch 2 of the Migration Regulations 1994 (Cth), which required the Minister to be satisfied that “the applicant intend[ed] genuinely to stay in Australia temporarily” (emphasis added) (J [4]). AAT application (Jul 2016): On 6 July 2016, the Appellants applied to the Tribunal for merits review of the delegate’s decision. AAT proceedings (Nov-Dec 2017): On 17 November 2017, the Tribunal sent the Appellants an invitation to attend a hearing before the Tribunal on 13 December 2017. That invitation asked the Appellants to provide “all documents you intend to rely on to establish that you meet the criteria for the visa”. The invitation requested in particular that the Appellants provide specified information “so that a decision can be made as quickly as possible”, including (J [6]):1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.2.Document(s) that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa. Access to PRISMS records: On 28 November 2017, the Tribunal obtained access to Provider Registration and International Student Management System (PRISMS) records, which indicated that Mrs Virk had completed her Diploma of Hospitality Management on 31 May 2017, and had not been enrolled in a course of study since then (J [7]). Request for adjournment refused: On 12 December 2017 (the day before the hearing), the Appellants’ representative sent an email to the Tribunal requesting a two-week adjournment of the hearing, due to a “medical and family condition”. The adjournment request attached medical certificates relating to Mrs Virk and her son (dated 6 December and 5 November 2017, respectively) and a psychologist’s report dated 11 November 2017 relating to the son. That material indicated that Mr Gill had been in India for nine months, resulting in stress to Mrs Virk and her two children, particularly her son (J [8]). The Tribunal responded by email the same day as follows:[T]he Member has decided that the matter will proceed as listed tomorrow morning. Mrs [V]irk’s medical certificates do not state that she is unfit to attend a Tribunal hearing for approximately an hour. The Member understands that she may be experiencing a stressful situation, however that is the case for most of the Tribunal applicants. In this case her medical evidence is unsatisfactory to warrant a postponement.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

AAT affirms decision (Dec 2017): The Tribunal gave an oral decision at the end of the hearing on 13 December 2017 (Tribunal’s reasons for decision (AAT) [4]). A written record of the decision was provided to the Appellants’ representative by email that afternoon. The critical parts of the Tribunal’s reasons are as follows:·The issue at the time of the Tribunal’s decision was whether the primary applicant (Mrs Virk) met the enrolment requirements for a student visa (AAT [7]).·With limited exceptions, the criteria for student visas in the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a principal course of study of a type specified in the Regulations. There was no evidence that Mrs Virk came within any of the exceptions to that requirement (AAT [8]).·Mrs Virk had not provided a copy of a current Certificate of Enrolment (COE) or letter of offer. In her evidence at the hearing, Mrs Virk confirmed that she completed her last course, a Diploma of Hospitality Management, in May 2017. At the hearing, she confirmed that she had not been the subject of a valid enrolment since that time (AAT [9]-[10]).·The Tribunal stated that Mrs Virk provided a medical certificate to the Tribunal, stating that she had been experiencing a stressful time with family issues. The Tribunal acknowledged this submission, but found that Mrs Virk “has had a sufficient notice of the requirement to provide the Tribunal with a Certificate of Enrolment or letter of offer for an applicable course”. The Tribunal continued (AAT [11]):As suggested to [Ms Virk] at [the] hearing, since completing her last course in May 2017, [she] has had sufficient time to enrol in another course, or make alternative arrangements including returning home until such time as she is able to study, or enrolling in a course but deferring for personal reasons.·As there was no evidence before the Tribunal that Mrs Virk was at the time enrolled in, or had a current offer of enrolment in, any applicable course of study, she did not meet the criteria for the class of student visa applied for (Subclass 572). Nor did she meet the criteria for the remaining classes of student visas. The decision under review was therefore affirmed (AAT [12]-[14]). That in turn meant that the other Appellants did not satisfy the requirements for a visa either (AAT [15]). Application for judicial review (Jan 2018): On 3 January 2018, the Appellants applied to the Federal Circuit Court (as it then was) for judicial review of the Tribunal’s decision. That application raised the following arguments (J [12]):I am not satisfied with AAT decision because I was not able to submit documents because of medical condition of me and my child. So I want to apply for review and willing to submit additional documents as required, as I was unable to study because of my and my son’s health issues so I could not study for a while as I requested to administrative appeals tribunal for some extension of my case but I could not get that. I was attending psychologist for my son and me as I was depressed because my son was in depression so in that mean time I was not in a condition to study so could not submit my supporting document to the administrative appeals tribunal. As I had already applied for the next course COE but I was waiting for seat to get in the semester. If AAT would be issued extension to me then I was able to submit my COE for the next course of my study. So I would like to review my case once again so that I can get decision for my future to complete my study. (emphasis added)The emphasised words above might suggest that Mrs Virk had already applied for another course and was waiting on a COE at the time of the Tribunal’s decision; however, it appears that any application was made after the Tribunal’s decision: see further [45]-[46] below.

Ratio Decidendi

Legal Principle Established

Mrs Virk appeared at the hearing on 11 June 2025. An interpreter attended the hearing for her assistance, but she was able to present her arguments unassisted.CONSIDERATION Court not concerned with merits of Tribunal’s decision: As the Appellants are not legally represented in this appeal, it is worth highlighting the relatively confined function of the courts in judicial review proceedings. The issue before the primary judge was whether the Tribunal’s decision contained a “jurisdictional error”; that is, a serious legal error that results in an administrative decision lacking any legal force (or being “invalid”): LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [2] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25] (Kiefel CJ, Gageler and Keane JJ). In this appeal, the issue is whether the primary judge was correct to find that the Tribunal’s decision did not contain jurisdictional error. Crucially, the issue before the primary judge, and before me, is not whether the Tribunal’s decision is correct on its merits. Duties to unrepresented litigants: The fact that the Appellants are legally unrepresented is of more general relevance. The duties that courts owe to unrepresented litigants have been discussed in cases such as SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing), and NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court). The principles are conveniently summarised by Moshinsky J in Wahed v Minister for Home Affairs [2019] FCA 247 at [26] as follows (citations omitted):Courts have an overriding duty to ensure that a trial is fair to all parties. In the context of an unrepresented litigant, that duty requires the Court to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case … However, there is no statutory right to legal representation. Nor is there any absolute right to legal representation at common law … In civil proceedings, procedural fairness does not require that a party be provided with legal representation, no matter how serious the consequences of the proceedings might be … . The obligation to ensure that a trial is fair requires the judge to give a self-represented litigant a reasonable opportunity to present evidence and make submissions in support of his or her case. However, a judge is not required to give legal or tactical advice to a self-represented litigant that would compromise the judge’s impartiality and be unfair to the opposing party: Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [106] (Murphy and Rangiah JJ).