Federal Court of Australia

Njoroge v Minister for Immigration and Citizenship [2025] FCA 930

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 31 July 2025 is dismissed.

2.    The appeal is dismissed.

3.    The appellant must pay the first respondent's costs of the appeal, fixed in the sum of $8,323.

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

REASONS FOR JUDGMENT

JACKSON J:

1    Mr Njoroge appeals from a decision of the Federal Circuit and Family Court of Australia (Division 2). That court dismissed an application for judicial review of the Administrative Appeals Tribunal, where the Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to cancel Mr Njoroge's visa.

2    For the following reasons, Mr Njoroge's appeal will be dismissed with costs.

Mr Njoroge's visa is cancelled

3    Mr Njoroge is a citizen of Kenya. In early 2020 he was in Australia under a Student (Temporary) (class TU) Student (subclass 500) visa.

4    A condition of the visa was that the holder of the visa 'must be enrolled in a full-time registered course': item 8202(2)(a) in Sch 8 to the Migration Regulations 1994 (Cth). A registered course is 'a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students': reg 1.03.

5    On 20 February 2020, the Department of Home Affairs wrote to Mr Njoroge putting him on notice of the intention of a delegate of the Minister to cancel his visa under s 116(1)(b) of the Migration Act 1958 (Cth). That section empowers the Minister to cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Department alleged that Mr Njoroge had not been enrolled in a registered course since 21 November 2018.

6    On 16 March 2020, after considering information provided by Mr Njoroge in response, a different delegate gave notice of cancellation of the visa on those grounds.

Tribunal proceeding

7    Mr Njoroge sought review of the delegate's decision in the Tribunal.

8    On 3 November 2021 (during the COVID-19 pandemic) the Tribunal held a hearing by audio link. Mr Njoroge participated in that hearing, unrepresented, apparently by telephone.

9    On 15 February 2022, the Tribunal decided to uphold the delegate's decision to cancel the visa, and gave written reasons.

10    There was no issue before the Tribunal that Mr Njoroge had not been enrolled in a registered course from 21 November 2018. The ground on which the visa had been cancelled under s 116(1)(b) of the Migration Act had therefore been established. Mr Njoroge does not dispute that in this appeal.

11    Mr Njoroge had, however, given the Tribunal documents showing that from 17 March 2021 he was enrolled in four cookery and hospitality courses at Stanley College. The Tribunal therefore found that Mr Njoroge had not been enrolled in a registered course between 21 November 2018 and 17 March 2021, a period of nearly two years and four months.

12    The Tribunal recognised that the decision to cancel the visa, being the decision it was making on review effectively standing in the shoes of the delegate, was discretionary. It therefore addressed a number of matters in its written reasons which it found variously weighed for or against cancellation.

13    In particular, the Tribunal examined the circumstances as to why Mr Njoroge had not been enrolled during that period of nearly two years and four months. It considered the reasons he had advanced, which concerned a death in Mr Njoroge's close family and other difficulties.

14    Despite that, the Tribunal found that Mr Njoroge had not taken reasonable steps to maintain his enrolment and compliance with his visa conditions, and that he had been in Australia without enrolment for a substantial period of time, namely the period of nearly two years and four months mentioned above. The Tribunal therefore placed 'high weight on this information' against Mr Njoroge (Tribunals reasons para 26).

15    After considering a number of other matters weighing for or against the cancellation of the visa, none of which are relevant to the appeal, the Tribunal decided, as has been said, to affirm the decision to cancel.

The primary judge's decision

16    Mr Njoroge was unrepresented before the primary judge. In order to succeed on his application for judicial review, he needed to establish jurisdictional error on the part of the Tribunal.

17    Mr Njoroge's written application before the primary judge advanced three grounds of review. They were largely unparticularised and Mr Njoroge's appeal to this Court does not touch on them, so they need not be mentioned further. But the primary judge also considered certain grounds that Mr Njoroge put to him in oral argument, two of which do feature in the appeal. They were that the Tribunal erred by conducting the hearing by telephone, and that the Tribunal failed to consider information about Mr Njoroge's studies that was found in the confirmations of enrolment for his cookery and hospitality courses.

18    In relation to the first of these, the primary judge cited a number of cases, as well as s 366 of the Migration Act, to the effect that it was open to the Tribunal to conduct the hearing by telephone. His Honour further noted that the Tribunal had advised Mr Njoroge before the hearing that it intended to conduct the hearing that way and asked him to contact the Tribunal as soon as possible if he believed that he would 'experience difficulty participating in the hearing as arranged'. Mr Njoroge filled out a 'Response to hearing invitation' form in which he answered 'No' to the question as to whether there was 'any issue that may affect your ability … to take part in the hearing' and also answered 'No' to 'Do you believe that you or another person will experience difficulty participating in the hearing or the hearing cannot be conducted as arranged in the hearing invitation'.

19    The transcript of the hearing in the Tribunal was not before the primary judge or before this Court. There was only a laconic formal record sheet kept by the Tribunal noting details of the hearing. It does not indicate that there had been any trouble with the audio hearing.

20    The primary judge thus found that there was:

[68]    … no evidence before the Court to suggest that the applicant raised any concerns regarding the quality of the telephone connection or any difficulties in understanding the Tribunal Member, either at the Tribunal hearing or in the correspondence between the applicant and the Tribunal following the scheduled hearing.

[69]    This Court was not provided with a transcript of the Tribunal hearing and there is no evidence in the Court Book (or before the Court) that suggests that the applicant had any difficulties when appearing before the Tribunal by telephone. Nor is there any evidence before the Court to suggest that the applicant was prejudiced by attending the Tribunal hearing by telephone.

[70]    No error arises in this regard.

21    As to the contention that the Tribunal had failed to consider information about Mr Njoroge's studies in cookery or the confirmations of enrolment provided in that regard, the primary judge quoted the part of the Tribunal's reasons for decision where it acknowledged those enrolments, and recorded an explanation given by Mr Njoroge as to why he enrolled in the cookery course. His Honour then said:

[73]    As outlined above, the Tribunal did consider both the documents provided by the applicant and the applicant's oral evidence in this regard. Ultimately, however, the Tribunal considered that the time that the applicant had remained in Australia without being enrolled in a course of study was 'substantial'.

[74]    Relevantly, the Tribunal stated:

24.    The Tribunal finds that the applicant remained in Australia without an enrolment for a substantial period of time before he received the Notice to Consider Cancellation from the Department in early 2020. Even then, the applicant did not obtain another enrolment until 17 March 2021.

[75]    The Court is satisfied that the Tribunal considered the applicant's limited evidence in this regard and made findings accordingly.

[76]    No error arises in this regard.

Grounds of appeal

22    Mr Njoroge was unrepresented in this appeal. His notice of appeal puts the following grounds:

1.    The learned primary judge erred in fact and law by failing to consider the evidence that was before the Second Respondent in relation to the Appellant's apprenticeship and Certificate of Enrolment from Stanley College.

2.    The learned primary judge erred in fact and law by failing to attribute sufficient weight to the poor quality of the telephone connection during the hearing, when he determined that the Second Respondent accorded the Appellant procedural fairness at the hearing.

23    Before considering these grounds, it is necessary to address an application for adjournment Mr Njoroge made.

Adjournment application

24    The parties were informed on 30 June 2025 that the hearing in this matter was listed to take place on 1 August 2025. By interlocutory application lodged one business day before that hearing, Mr Njoroge sought a six month adjournment. The application was heard at the beginning of the already listed hearing of the appeal. The Minister opposed it. I dismissed the application and said that I would give reasons when delivering judgment on the matter overall.

25    The grounds for adjournment Mr Njoroge put in the application were said to be his financial circumstances, in that he had lost his job earlier this year due to not having any right to work in Australia, that is, because of his visa situation. He said that he had been unable to seek legal advice or representation due to his financial hardship.

26    At the hearing, Mr Njoroge put into evidence a letter of termination dated 18 February 2025 from his former employer, a notice of termination of the lease of the unit in which he was living, which he said from the bar table was due to his inability to pay rent, and a form he has lodged claiming his rental bond of $2,600, which the landlord has apparently not yet refunded.

27    Mr Njoroge's oral submissions made it clear that he relied on that latter point as a basis to say that, together with a tax refund he said he would receive of about $7,000, he would be able to get in over $9,000 in order to retain a lawyer to represent him in his appeal. Mr Njoroge candidly disclosed, however, that he also owed the Minister $5,000 from the costs of his unsuccessful judicial review application in the court below. Also from the bar table, he said that he had spoken to a few lawyers to see whether they could represent him, but each of them had told him to 'look for another lawyer' and he had no funds at present to pay them on trust.

28    Mr Njoroge explained that as a person with no legal training, he had found it difficult to understand documents that had been provided to him in the course of the appeal proceeding, such as the appeal book. He was concerned that without legal representation, he would not be able to understand the legal terms used in the proceeding or present his best case on the appeal.

29    In WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2] I summarised the principles that apply to applications for adjournment in circumstances such as these, as follows:

(1)    Lack of legal representation is not, of itself, a reason to adjourn the hearing of a long-scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19].

(2)    Other than in the case of persons appearing before a court for a serious criminal offence, there is no absolute 'right' to legal representation in this country, in the sense that a judge is required to adjourn the proceeding if the party has no lawyer: EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 at [18]; Jarrett v Westpac Banking Corporation [1999] FCA 425 at [6]; and Pallas v Minister for Home Affairs [2019] FCAFC 149 at [42(a)].

(3)    Nevertheless, the fact that a party wishes to obtain legal representation is a relevant factor in considering the question of whether an adjournment should be granted: BSY16 v Minister for Home Affairs [2019] FCA 140 at [5].

(4)    Matters that will be relevant in determining the weight to be given to that wish may include:

(a)    the amount of time the party has had to obtain legal representation;

(b)    the steps the party has taken to obtain such representation during that time;

(c)    the explanation for any delay in that respect;

(d)    the utility of any adjournment, including the likelihood of the appellant obtaining legal representation; and

(e)    the time required for the appellant to do so,

see BSY16 at [5]; and Pallas at [42].

(5)    In the end, the decision whether to adjourn is a discretionary decision for the court hearing the matter, which must be exercised judicially and will depend on the individual circumstances that are relevant: EPH17 at [18]-[19]; Jarrett at [78].

30    In this case, Mr Njoroge's appeal has been on foot since June 2023. He has thus had over two years to obtain legal representation. He has given no evidence of attempts to obtain legal advice during that time, other than the brief mention from the bar table of what appears to have been a handful of quite recent unsuccessful attempts.

31    Further, Mr Njoroge has been on notice of the 1 August 2025 listing since 30 June 2025. While it can be accepted that losing his job and his house have been significant setbacks for him, both of them occurred before he was notified of the date of the hearing, so they do not provide any apparent explanation for the delay in obtaining legal representation since that notification.

32    It must be said also, regrettably, that Mr Njoroge's apparently precarious financial position instils no confidence that an adjournment of any period is going to improve his chances of obtaining legal representation. There was no evidence, and not even any detail, before the Court to support Mr Njoroge's opinion, in effect, that he will come into funds of about $7,000 by way of a tax return, or when those funds will be available. While Mr Njoroge was confident that he would recover the rental bond of $2,600, there is nothing in the evidence to say when that is likely to occur, and even when it does it is unlikely to be enough to obtain legal representation. Mr Njoroge's own evidence about his small number of unsuccessful attempts confirm how difficult it will be for him in that regard.

33    The Court thus has no real reason to think that any adjournment will improve Mr Njoroge's position. To the contrary, Mr Njoroge's difficult financial position makes any such improvement unlikely. It is unfortunate that impecuniosity means that he has no legal representation. But as set out above, there is no right to legal representation in this situation.

34    Mr Njoroge said he was unprepared to make any substantive argument on the appeal if there was no adjournment. But my Chambers made it clear repeatedly that subject to the outcome of the adjournment application, the hearing was likely to go ahead on 1 August 2025. Mr Njoroge must have been aware that an adjournment might not be granted, so if he did not marshal his arguments, he was aware of the risk he took.

35    Those are the reasons why I refused the adjournment application.

Consideration of the appeal

36    As a result of the situation that has just been described, Mr Njoroge had little to say at the hearing to expand on his grounds of appeal.

Ground 1

37    With respect, ground 1 is not easy to understand. The primary judge did consider the fact that Mr Njoroge was enrolled in cookery and hospitality courses at Stanley College. Those were the confirmations of enrolment dated 17 March 2021.

38    As his Honour correctly found, the Tribunal considered them too. The Tribunal took them into account, in that they marked the end of the period during which Mr Njoroge was not complying with the condition requiring enrolment in a full-time registered course. But the Tribunal, after considering the length of time he had been non-compliant, his explanations for the non-compliance, and a number of other factors, nevertheless agreed with the delegate that the long period of non-compliance justified cancellation of the visa.

39    Mr Njoroge also showed me evidence (on his smartphone) that from 23 August 2023 he has been enrolled in an apprenticeship in warehouse management. But that enrolment postdates the decision of the primary judge, and so the decision of the Tribunal. It cannot be a foundation for a finding that either has erred.

40    Neither before the primary judge nor on appeal did Mr Njoroge articulate anything wrong with the Tribunal’s approach, or identify anything more, or different, which it should have taken from the fact of the March 2021 enrolments. I do not uphold ground 1.

Ground 2

41    In relation to ground 2, there is little to say other than to express agreement with the reasons of the primary judge. As before his Honour, so on appeal, there was no evidence that Mr Njoroge suffered any difficulties in taking part in the hearing or that he raised any such difficulties with the Tribunal. At the hearing of the appeal Mr Njoroge simply made assertions from the bar table about phone connection difficulties he had when taking part in the hearing, but those difficulties were not established by any evidence, and nor was it apparent from anything before the Court that the alleged problems detracted in any significant way from the fairness of the Tribunal hearing.

42    I do not uphold ground 2.

Conclusion

43    The appeal will be dismissed, with costs. The Minister sought the short form amount of $8,323 claimable for the costs of an appeal that is dismissed after hearing, as found in item 15.2 of Sch 3 to the Federal Court Rules 2011 (Cth). Mr Njoroge did not advance any reason why that sum should not be awarded, other than his inability to pay it. At least in the present circumstances, inability to pay by itself does not provide a good basis to oppose a costs order. An order for the costs of the Minister will be made in the amount claimed.

Associate:

Dated:    11 August 2025