Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

HILL J:

1    This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2): Virk v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 434 (J). The primary judge dismissed an application for judicial review of a decision of the former Administrative Appeals Tribunal, which had affirmed a decision not to grant the Appellants Student (Subclass 572) visas (student visas).

2    For the following reasons, the appeal should be dismissed with costs.

Background

3    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]).

4    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.

5    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]).

6    AAT application (Jul 2016): On 6 July 2016, the Appellants applied to the Tribunal for merits review of the delegate’s decision.

7    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.

8    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]).

9    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.

10    AAT hearing: On 13 December 2017, Mrs Virk attended a hearing at the Tribunal with her children (J [9]). The hearing began at 9.35am and finished at 10.27am, and included an adjournment of approximately 25 minutes.

11    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]).

12    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.

13    At the hearing before the primary judge, Mrs Virk submitted that her primary grievance with the Tribunal’s decision was that she intended to enrol in another course, but was not able to do so in December 2017 because of her family situation. She had the care of two young children and her husband was in India (J [14]). (I note that, at the time of the Tribunal’s hearing in December 2017, Mrs Virk’s children were seven and a half, and almost four years old.)

14    Primary judge dismisses application (May 2023): On 29 May 2023, the primary judge dismissed the application for judicial review, with costs. The parts of the judgment relevant to this application are as follows.

15    Two issues (refusal to adjourn; nature of statutory function): The primary judge held that the application for review raised two issues that required assessment: (1) whether it was legally unreasonable for the Tribunal not to adjourn the matter given the medical material, Mrs Virk’s personal circumstances, and her stated intention to enrol in another course; and (2) whether the Tribunal mistook its statutory functions as to the granting of a student visa, having regard to the fact that Mrs Virk did not have a COE or an offer of enrolment as of the date of the hearing (13 December 2017) (J [15]).

16    No jurisdictional error: The primary judge found that neither of these issues demonstrated any jurisdictional error in the Tribunal’s decision.

    On issue (1) above (refusal to adjourn), the primary judge found that it was open to the Tribunal to refuse the adjournment on the basis of Mrs Virk’s medical material and family situation (J [23]). Further, there was an evident and intelligible justification for the Tribunal to decline the adjournment so that Mrs Virk could enrol in another course, because by that time she had not been a student for 6 months (J [25]).

    On issue (2) above (statutory function), a mandatory criterion for the Subclass 572 visa was that, at the time of the Tribunal’s decision, “the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course”. That was a different question from why at that time Mrs Virk had not been studying since May 2017 (to which Mrs Virk’s family circumstances could have been relevant) (J [25]-[27]). The fact that Mrs Virk was not currently enrolled in, or the subject of a current COE, in a relevant course at the time of the Tribunal’s decision meant that she did not satisfy the mandatory criteria for the granting of a visa (J [31]).

17    Failure to put adverse PRISMS information? The Minister, as model litigant, also raised whether the Tribunal had contravened s 359A(1) of the Migration Act 1958 (Cth) by failing to put the adverse information obtained from PRISMS records to Mrs Virk. In this case, Mrs Virk had confirmed in her oral evidence in the Tribunal the information that was apparent from PRISMS: that she had completed her last course in May 2017, and that she did not have a valid enrolment since then. That either meant that s 359A did not apply to that information (because that information was apparent from her own evidence), or it meant that any failure to comply with s 359A(1) could not realistically have led to a different outcome (see J [33]-[37]).

18    Appeal to this Court (Jun 2023): On 22 June 2023, the Appellant filed a notice of appeal in this Court. That notice contains the following grounds of appeal:

1.    The Court was wrong in agreeing with the Tribunal that the Tribunal did not have to give me more time (adjournment) to provide further documents and a certificate of enrolment. The Tribunal had only noted and relied on the most recent medical certificate dated 6 December 2017, but had not relied on the earlier medical certificate dated 5 November 2017 and report dated 11 November 2017 from the psychologist for my son … . All these documents taken together show the ongoing medical issues because of which I had a short break in my studies and needed some more time to provide further documents and a certificate of enrolment. In all circumstances, and talking all matters into account, the Tribunal should have given me an adjournment.

2.    The Tribunal and Court failed to consider that I had applied for my next course, being “Advanced Diploma of Hospitality Management”, which had a start date of 1 October 2018. This course was to follow on from my immediately preceding course of Diploma of Hospitality Management. I had a conditional letter of offer but had not enrolled in this course as I did not have a current student visa.

3.    The Tribunal and Court failed to consider that I since coming to Australia in 2007, I had no break in my studies. They failed to note my regular progression of studies as follows:

…

Other than the above, the Tribunal in its decision also referred to first applicant’s (main visa applicant’s) career plans including “nursing and hairdressing”. As can be seen from above, there was no “nursing” course and even the “hairdressing” course was not pursued, with the main focus being on just hospitality and associated general course of business and management. These have led to the first applicant’s current job as chef.

4.    The Tribunal was wrong in agreeing with the delegate that the courses completed by the main visa applicant were or short duration and low cost. This is not correct, as the courses were progressive and rather expensive.

5.    The Tribunal was wrong in agreeing with the delegate that the courses completed by the main visa applicant lacked apparent value to the applicant’s future. This is not correct as because of these courses, the first applicant is currently working as a chef.

6.    The Court and Tribunal did not fully consider applicants’ personal exceptional circumstances for the reason of the second applicant Kultar Singh Gill being stuck in India since January 2017 as he could not return in the absence of visa. This had caused great stress and hardship on the whole applicant family.

19    Adjournment application refused (Jun 2025): Around 10.23am on 10 June 2025 (the day before the scheduled hearing), Mrs Virk called chambers stating that she was unwell and would not be attending the hearing. She was asked to set out her reasons in writing, and to provide a medical certificate. At around 10.33am, she emailed chambers stating “[u]nfortunately, due to my back injury and very bad flu, I am currently unable to attend the hearing tomorrow as scheduled. So I am attaching my medical certificate as well”. The email attached a screenshot of a medical certificate provided by a medical centre in Melton dated 9 June 2025, which states:

THIS IS TO CERTIFY THAT

Name: Mrs BHUPINDER VIRK

DOB: …

Address: …

Tel: …

has a medical condition and will be unfit for work

from     10/6/2025 to      13/06/2025     inclusive.

20    I treated the email as an application for an adjournment; however, I refused that application. Mrs Virk and the solicitor for the Minister were notified of that decision by return email. A great number of decisions of this Court have held that unparticularised material of the type provided by Mrs Virk is not a sufficient basis for adjourning a proceeding: see, for example, NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [6]-[8] (Lindgren J); MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 at [9] (Logan J); Gulati v Minister for Immigration and Border Protection [2017] FCA 255 at [11], [14] (Bromwich J); Tang v Minister for Immigration and Border Protection [2018] FCA 1274 at [29] (Kenny J). The lateness of the application also tended against granting an adjournment: see, for example, Matson v Attorney-General (No 2) [2022] FCA 213 at [6] (Collier J); Dharma v Minister for Home Affairs [2019] FCA 431; (2019) 78 AAR 10 at [37] (Griffiths J); FQV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 225 at [17]-[18] (Stewart J).

21    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

22    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.

23    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 … .

24    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).

25    I will therefore consider any argument of substance that arises squarely from the materials, and will not confine my attention strictly to the grounds of appeal: see DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9]-[10] (Colvin J); BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 531 at [35] (Wheelahan J).

Ground 1: The Tribunal’s failure to adjourn

26    Ground 1 seeks to challenge the Tribunal’s decision not to grant an adjournment. This ground states particularly that the Tribunal only referred to the medical certificate dated 6 December 2017, but not the earlier medical certificate dated 5 November 2017 and the psychologist’s report dated 11 November 2017 which concerned Mrs Virk’s son (the Third Appellant).

27    Failure to consider? As expressed, this ground raises an argument that the Tribunal failed to consider material provided to it, when deciding not to adjourn the hearing. The Appellants argue, in effect, that the Court should infer that the Tribunal considered only the medical certificate that related to Mrs Virk, and failed to consider the medical certificate and psychologist’s report that related to her son.

28    Medical material: In assessing that argument, it is helpful to set out the relevant parts of the material that was provided to the Tribunal in support of the Appellants’ adjournment request.

    The 6 December 2017 medical certificate states that Mrs Virk and her son were attending the clinic regularly, and that Mr Gill (her husband and the son’s father) was not here in Australia. The certificate then states:

Mother is currently stressed about the family situation as her partner is currently in India. It would be great to have some time off and counselling with psychologist. I have explained management plan to her.

    The 5 November 2017 medical certificate concerns the son. The certificate states that his father had been in India for the last nine months, and that the son had attended a specialist dietician due to not gaining weight. The certificate then states:

The partner is also in stressed about not seeing him. The kids are very close to the father. It would be great to have father with them and have permission to see family to avoid psychological impact.

    The 11 November 2017 psychologist’s report also concerns the son. The psychologist’s opinion was that the son’s presentation did not indicate any developmental disorder, or general psychopathology. The opinion concludes that:

… the “failure to thrive” is a result of the primary negative factor of prolonged separation from the father. The redress of this injurious vector (separation from the father) should be urgent and primary factor in the minds of those who are empowered to make decisions on behalf of the child.

29    No proper inference that the Tribunal failed to consider the materials: In some situations, a Tribunal’s failure to consider material provided to it can amount to a jurisdictional error: see, for example, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]-[112] (Robertson J); Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [44]-[45], [49]-[50] (the Court). The threshold issue is whether an inference can properly be drawn that material was overlooked: see, for example, WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (the Court); Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431 at [55](3) (the Court).

30    In this case, I would not infer that the Tribunal failed to consider the medical material relating to Mrs Virk’s son when deciding to refuse an adjournment.

    Although it is not decisive, the Tribunal’s reasons for refusing an adjournment refer to Mrs Virk’s medical “certificates”; that is, plural: see [9] above. In other words, the Tribunal was aware that Mrs Virk’s representative had submitted more than one document. At the same time, it is true that the Tribunal’s reasons for refusing an adjournment do not refer expressly to the son’s condition.

    An important factor in the analysis is the centrality of the matter (said to be overlooked) to the issues to be decided: Jabari at [55](4); SZRKT at [111]. A decision-maker is not required to refer to every piece of evidence: WAEE at [46], but sometimes a matter is so central to the decision that it can be expected that it will be referred to expressly if it has been considered: MZYTS at [52]. Conversely, a failure to refer expressly to material may be because the decision-maker did not consider that the material was relevant to the issue. Further, the level of detail required in reasons to demonstrate that a matter has been considered may be less for a procedural decision, such as a decision to refuse an adjournment, as compared with a decision on the substantive application: see Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 at [56] (French CJ and Kiefel J); see also Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [71] (Griffiths J).

    Here, the central issue for the Tribunal in deciding whether to grant an adjournment was the capacity of Mrs Virk to give evidence before it. The psychological condition of her son (although no doubt of great importance to her) was not relevant to this question, except to the extent (if any) that it bore on her capacity to give evidence. This difference of perspective is why I would not infer from the absence of an express mention of the condition of Mrs Virk’s son that the Tribunal did not consider this material at all. The more natural inference is that the Tribunal decided that this material did not affect the issue before it (whether Mrs Virk could give evidence and whether the hearing could proceed).

31    Unreasonable failure by Tribunal to adjourn? A second argument coming within Ground 1 is whether the Tribunal’s refusal to adjourn the proceedings was legally unreasonable in the circumstances. At the level of principle, two points are clear:

    first, a decision whether or not to grant an adjournment must be exercised reasonably; but

    second, legal unreasonableness is a demanding standard, and an administrative decision is not legally unreasonable simply because the Court disagrees with it.

See Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [24], [30] (French CJ), [63], [66] (Hayne, Kiefel and Bell JJ), [88]-[89], [108]-[109] (Gageler J); Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [43] (the Court).

32    Reasons for seeking an adjournment: Here, the stated reason for seeking an adjournment for two weeks was “the medical and family condition of [Mrs Virk]”. The Appellants contend in this Court that the medical documents provided show the “ongoing medical issues because of which I had a short break in my studies and needed some more time to provide further documents and a certificate of enrolment”. The Tribunal’s email (referred to in [9] above) gave reasons for deciding to proceed with the hearing without an adjournment. In my view, the decision to proceed with the hearing was not legally unreasonable: it was open to the Tribunal to conclude on the basis of the medical material provided that Mrs Virk was able to give evidence to the Tribunal.

33    Ground 1 also raises the broader issue of whether it was legally unreasonable of the Tribunal not to have deferred making a decision (as distinct from not postponing the hearing) until Mrs Virk had been given a further opportunity to obtain a COE or letter of offer. (As noted, the Tribunal made an oral decision at the end of the hearing.)

34    The Tribunal gave additional reasons in its written decision for refusing to give Mrs Virk any further opportunity to obtain documents such as a COE or letter of offer: the Tribunal found that Mrs Virk had had sufficient notice of the requirement to provide the Tribunal with a COE or letter of offer for an applicable course, and considered that Mrs Virk had had sufficient time since completing her last course to enrol in another course, or make alternative arrangements. That period was more than six months, from 31 May to 13 December 2017. The AAT also considered that there were other steps that Mrs Virk could have taken to address the stress caused by the absence of Mr Gill, such as returning temporarily to India or enrolling in a course but deferring for personal reasons (AAT [11]).

35    Evident and intelligible justification? The Minister submits that the Tribunal has given an “evident and intelligible justification” for its decision not to give Mrs Virk any more time, and therefore there is no legal unreasonableness. The primary judge noted that Mrs Virk had not been a student for six months by the time of the Tribunal hearing and decision (J [25]). Although that matter is highly relevant, it cannot be a sufficient justification by itself to refuse an adjournment (at least not invariably) simply to say that a person has already had a sufficient opportunity to get ready to present their case: that was the reason given in Li for refusing to grant an adjournment, yet that decision was unreasonable in the circumstances of that proceeding: see Li at [40].

36    One difference between this case, on the one hand, and both Li and Singh, on the other, is the reason for which an adjournment was sought, and the prospect that an adjournment would achieve a useful purpose.

    In Li, the visa applicant sought an adjournment in tribunal proceedings to obtain review of an unfavourable skills assessment. The High Court considered that the applicant in Li had sought an extension for a specific purpose (to obtain review of a decision), and had demonstrated a proper basis for considering that there would be a favourable outcome to this review: see Li at [83] (Hayne, Kiefel and Bell JJ); see also [21] (French CJ), [122] (Gageler J).

    Similarly, in Singh, the visa applicant had sought a further adjournment to seek a re-mark of an unfavourable English test. The Full Court considered that the visa applicant was seeking an adjournment for a specific purpose and that, objectively, there was a reasonable basis to believe the unfavourable mark may not have been an accurate reflection of the visa applicant’s performance: Singh at [68], [73]. The Full Court noted that the visa applicant “was not requesting an opportunity to sit another test”: Singh at [72].

37    Consistently with this analysis, the Minister referred to Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93; (2022) 182 ALD 176, where the visa applicant had obtained an unconditional offer by the time of the hearing (which was open for acceptance until two weeks after the hearing), and would be able to obtain a COE on the payment of the first semester’s fees: Bhandari at [28]. Burley J held that it was legally unreasonable for the Tribunal in these circumstances not to grant an adjournment to enable the visa applicants to obtain a COE, particularly as the Tribunal’s earlier correspondence had been ambiguous as to whether the visa applicants needed to provide a COE or an offer, and there was evidence that the visa applicants had access to sufficient means to pay the required fees: Bhandari at [62]-[66].

38    In this case, by contrast, Mrs Virk sought an adjournment so that she could start the process of obtaining a COE or letter of offer. The Minister submits that there is a critical difference between a person asking for more time to continue a process that is already in train (seeking a review or re-mark of an unfavourable decision, obtaining a COE by accepting an unconditional offer), and a person (as here) asking for more time to commence a process; that is, to apply for enrolment in a course.

39    The Minister’s argument is supported by Minister for Immigration and Border Protection v Pandey [2014] FCA 640: (2014) 143 ALD 640. In Pandey, the visa applicants did not have a COE at the time of the Tribunal hearing, and the Tribunal refused to allow them additional time to provide further evidence, because the Tribunal considered that they had had “ample opportunity” to provide the necessary evidence: Pandey at [11]-[12]. Justice Wigney stated that the legal reasonableness of the Tribunal’s decision was “borderline”, but held that the decision was not legally unreasonable: Pandey at [51]-[55]. That was so, even though Wigney J considered that the applicant had sought additional time “for the specific purpose” of enrolling in a course, and that there was nothing before the Tribunal in that case to suggest that she would not be able to enrol in a suitable course: see Pandey at [46].

40    Of course, legal unreasonableness is not simply a matter of using the facts of one case as a checklist: Singh at [42]. At the same time, it is permissible to examine the facts of comparable cases to obtain guidance on where the line between valid administrative decisions and legal unreasonableness is to be drawn. Here, a comparison with the facts of Pandey especially indicates that the Tribunal’s refusal to give Mrs Virk more time to obtain a COE or letter of offer was not legally unreasonable. It assists this conclusion that the Tribunal expressly turned its mind to what alternative steps Mrs Virk could have taken (see AAT [11]).

41    Mrs Virk already had a conditional offer? I note that the Appellants’ Ground 2 (considered below) states that Mrs Virk applied for another course and received a conditional offer; however, as explained below, it appears that these steps occurred after the Tribunal’s decision. Legal unreasonableness is assessed at the time of the decision, on the basis of the circumstances known to the decision-maker: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26] (the Court); DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 at [21] (Kiefel CJ, Gageler, Gordon and Steward JJ). Accordingly, any application for a further course or receipt of a conditional offer, made and received after the Tribunal’s decision, could not demonstrate any legal unreasonableness on the part of the Tribunal.

Remaining grounds of appeal

42    Leave required to raise new arguments: The Appellants’ remaining grounds of appeal raise arguments that were not raised before the primary judge. The Appellants therefore require leave to raise these new arguments on appeal: see DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344 at [23] (the Court); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46], [48] (the Court). The touchstone is whether granting leave to raise the new point is in the interests of justice, having regard to matters such as whether there is an explanation for not raising the point at first instance, whether there is prejudice to any party, and whether the new point has any merit: DBWG at [24].

43    For the following reasons, the new grounds lack any merit. Leave should therefore be refused to raise these arguments on appeal: see VUAX at [48].

44    Ground 2 (application for another course, conditional offer): Ground 2 contends that the Tribunal and the primary judge failed to consider that Mrs Virk had applied for her next course, being an “Advanced Diploma of Hospitality Management”, which had a start date of 1 October 2018. This ground contends further that Mrs Virk had a conditional offer but had not enrolled in this course because she did not have a current student visa.

45    Judicial review considers circumstances at the time of decision: Ground 2 does not state when Mrs Virk made this application, or when she received the conditional offer. Mrs Virk stated at the hearing that she made this application after the Tribunal’s decision. This timing is critical, because the lawfulness of administrative decisions is assessed on the circumstances at the time of decision, so that a change in factual circumstances after the decision is made does not affect the lawfulness of that decision: see, for example, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; (2022) 289 FCR 164 at [28], [38] (the Court); NZA v Minister for Immigration and Citizenship [2013] FCA 140; (2013) 140 ALD 555 at [111] (Kenny J); Tariq v Minister for Immigration and Border Protection [2018] FCA 1409 at [7] (Perram J). And plainly the Tribunal cannot have failed to consider a matter if the matter was not put to it.

46    These matters were not communicated to the Tribunal: The Minister points out, correctly, that there is no evidence before the Court that Mrs Virk has applied to do an Advanced Diploma of Hospitality Management, or that she has received a conditional offer, but only statements to this effect in the notice of appeal. If it had been necessary, I may have been prepared to grant Mrs Virk leave to put on further evidence to show when she made the application, and when she received the conditional offer. But she stated at the hearing that she made the application after the Tribunal’s decision. That statement is consistent with her arguments before the primary judge that she intended to enrol in another course (and told the Tribunal of that intention), but was not able to do so in December 2017 because of her family situation (see J [14]).

47    Accordingly, even taking Mrs Virk’s case at its highest, she cannot establish that she had applied for another course and received a conditional letter of offer at the time of the Tribunal’s hearing and decision in December 2017, nor (crucially for Ground 2) that those steps had been communicated to the Tribunal. It follows that the Appellants have not established that there was a failure by the Tribunal to consider these matters.

48    No requirement for primary judge to consider these matters: Ground 2 also refers to the primary judge failing to consider these matters. However, there was no requirement to do so. As just mentioned, it appears that a different factual case was put to his Honour, and in any event the crucial issue in those judicial review proceedings was whether the necessary matters were considered by the Tribunal. Ground 2 must therefore be rejected.

49    Ground 3 (unbroken studies): Ground 3 contends that the Tribunal and the primary judge failed to consider that, since coming to Australia in 2007, Mrs Virk had no break in her studies, and failed to note her regular progression of studies. This argument misunderstands the basis of the Tribunal’s decision. Unlike the delegate, the Tribunal was not considering whether Mrs Virk genuinely intended to stay in Australia temporarily, but was considering whether she satisfied the enrolment requirement at the time of the Tribunal’s decision. The regular progression of Mrs Virk’s studies was not relevant to that question.

50    Ground 3 contends separately that the Tribunal incorrectly referred to Mrs Virk’s career plans as including “nursing and hairdressing”. This appears to be a reference to the delegate’s decision, as the Tribunal’s written decision does not contain this statement. Ground 3 must be rejected.

51    Grounds 4 and 5 (findings of delegate): Grounds 4 and 5 contend that the Tribunal erred by agreeing with certain findings of the delegate. However, as just noted, the basis of the Tribunal’s decision was quite different from that of the delegate’s decision. The findings complained of are not part of the Tribunal’s decision. These grounds must be rejected.

52    Ground 6 (exceptional circumstances): Ground 6 contends that the Tribunal and the primary judge did not fully consider the Appellants’ personal exceptional circumstances, namely that Mr Gill was stuck in India since January 2017 as he could not return in the absence of a visa. The Appellants contend that this circumstance had caused great stress and hardship on the whole family.

53    For the reasons set out under Ground 1 above, I am satisfied that the Tribunal did consider Mr Gill’s absence, and its effect on the family, in the course of deciding not to provide Mrs Virk with more time to obtain a COE or letter of offer. That decision was not legally unreasonable. To the extent the complaint is that the Tribunal did not “fully” consider this circumstance, the legal requirement that the Tribunal must read, identify, understand and evaluate the Appellants’ claims does not allow the Court to review the merits of the Tribunal’s decision: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [26] (Kiefel CJ, Keane, Gordon and Steward JJ).

54    Other arguments? For completeness, I have reviewed the decision of the primary judge and the Tribunal, and am satisfied that neither contains any self-evident error: see COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J); Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2023] FCA 978 at [11] (Wheelahan J). In particular, I am satisfied that the more recent discussion of materiality in LPDT does not affect the primary judge’s conclusion that any non-compliance with s 359A(1) of the Act could not be material, in circumstances where Mrs Virk’s own oral evidence at the Tribunal hearing confirmed the matters that the Tribunal found out from its review of PRISMS records: see [17] above.

Conclusion

55    The appeal should be dismissed with costs. The Minister seeks costs fixed in the sum of $4,200. The Court has power to award costs in a fixed sum: see Federal Court of Australia Act 1976 (Cth), s 43(3)(d); Federal Court Rules 2011 (Cth), r 40.02(b). In the case of proceedings to challenge migration decisions, the Rules set out an amount that may be claimed if an appeal or application is discontinued before hearing (currently $5,278), and a higher amount that may be claimed if an appeal or application is dismissed after hearing (currently $8,323): see Rules r 40.43, Sch 3 items 15.1 and 15.2. The amount sought by the Minister is lower than both of these amounts.

Associate:

Dated:    17 June 2025

SCHEDULE OF PARTIES