Visa Compliance, Cancellation, and Review: Singh v Minister Case Study

This case study examines the legal principles of visa compliance, cancellation, and review, focusing on the case of Singh v Minister for Immigration & Anor [2017] FCCA 1901. The appellant, a student on a Subclass 573 visa, faced visa issues due to difficulties with an ELICOS course and subsequent depression. The Federal Circuit Court found that the Tribunal committed a jurisdictional error by failing to consider relevant materials, including the appellant's written statement explaining his reasons for changing his study course to cookery and his diagnosis of depression. The Tribunal misconstrued evidence and overlooked essential documents, including the diagnosis report, which was a crucial factor in the appellant's claims. The court highlighted the Tribunal's failure to consider the appellant's mental health and the reasons behind his course change, as well as the provisions in Direction No. 53 permitting reasonable changes to study pathways. The decision underscores the importance of considering all relevant evidence and adhering to procedural fairness in visa-related cases, ultimately leading to the conclusion that the Tribunal failed to exercise its jurisdiction appropriately.

Running head: VISA COMPLIANCE, CANCELLATION AND REVIEW
Visa Compliance, Cancellation and Review
Name of the Student
Name of the University
Author Note

1VISA COMPLIANCE, CANCELLATION AND REVIEW
Singh v Minister for Immigration & Anor [2017] FCCA 1901 (14 August 2017)
In this case, the appellant held a student (Temporary) (Class TU) Subclass 573 visa while
he arrived in Australia and had undertaken an English Language Intensive Course for Overseas
Students (ELICOS course). However, he had difficulties with the ELICOS course and was
subjected to depression. The appellant had submitted a written statement before the Tribunal
stating the reasons why he changed his study course to cooking as he always wanted to become a
professional cook. Since the appellant came from India he believes there are several scopes for
his future employment as a professional cook.
The Federal Circuit Court contended that Tribunal’s decision did not include the material
that the applicant had provided to the court through his statement regarding his reasons to change
his study course to cookery from business management. An administrative tribunal is saifd to
commit jurisdictional error when it fails to consider matters which is required to be considered
by the court. Under section 499 of the Migration Act 1958 (Cth) and Direction No. 53, the
tribunal is required to take into consideration those materials that are laid down in the Ministerial
Direction No. 53 that is relevant to the decision1.
The tribunal was held to have misconstrued the evidence that was produced before it by
the appellant. It failed to have regard to the essential documents regarding his reasons for
changing his study course and his reasons for depression. This amounted to a jurisdictional error
on part of the Tribunal for failing to consider the relevant material. The Tribunal held that the
depression of te appellant was a result of the considerable gaps that was present in the enrolment
and studies of the applicant. The Tribunal further held that as per the subsequent analysis of the
1 The Migration Act, 1994 (Cth) (section 499).

2VISA COMPLIANCE, CANCELLATION AND REVIEW
claims made by the Appellant it is because of the gaps in the studies and enrolment that caused
his depression.
The tribunal had failed to consider the actual diagnosis that the appellant had referred to
which is evident that the appellant was feeling depressed as he wished to change his study course
from management to cookery and he misses his parents who resides in India and he is away from
home. The appellant visited Dr Tahayvalappil-Kyparath and the diagnosis was conducted by the
same doctor. The court failed to consider the diagnosis report while making its decision.
The Tribunal failed to notice the diagnosis as a result of which the claim made by the
applicant regarding his reason for depression was rejected by the Tribunal. The tribunal rejected
the fact that the appellant was suffering from depression as he was away from home for a
significant time without any educational achievements and a considerable gap in his study have
resulted in his mood swings2.
The tribunal had taken a brief and insignificant part of the oral evidence adduced by the
applicant with respect to his enrolment in the Hospitality course which was completely irrelevant
to the any of the matters that were mentioned in student’s written statement. The Tribunal had
overlooked the reasons and considered the depression to be the result of the gaps in the
appellant’s enrolment. The Tribunal restricted its consideration by stating that there is no
relevancy between the applicants’s previously completed education and his recourse to
management studies.
The Tribunal has not only failed to have regard to the essential matters that were to be
taken in to consideration as per Direction No. 53 but also failed to mention that it is permitted to
2 The Migration Act, 1994 (Cth).

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make reasonable changes to study or career pathways which was also stipulated under Direction
No. 533. The decision made by the Tribunal with respect to the consideration of the Applicant’s
claim and materials , it is evident that it lacked essential distinctiveness which establishes that the
Tribunal had failed to have regard to the essential material that was required to be considered.
The ignorance of relevant matters such as the diagnosis of depression and the evidence in
the form of written statement which includes reasons of the applicant to change his study course,
is a clear evidence of the fact that the Tribunal had failed to exercise its jurisdiction for which it
was authorized.
3 The Migration Act, 1994 (Cth) (Direction No. 53).

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Reference List
The Migration Act, 1994 (Cth).
Singh v Minister for Immigration & Anor [2017] FCCA 1901 (14 August 2017)