Ali v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1546
•23 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ali v Minister for Immigration and Citizenship [2025] FedCFamC2G 1546
File number(s): SYG 17 of 2024 Judgment of: JUDGE SKAROS Date of judgment: 23 September 2025 Catchwords: MIGRATION – where the Tribunal affirmed a decision of a delegate of the First Respondent to cancel the applicant’s (Subclass 500) Student visa – where the Tribunal does not expressly refer to Department’s Procedures Advice Manual Guidelines — Procedural Instruction General visa cancellation powers – where the Court accepts the Tribunal considered the guidelines in its assessment – where the Tribunal failed to consider Australia’s international obligation under the Convention on the Rights of the Child – application allowed Legislation: Migration Act 1958 (Cth) ss 65, 116(1)(b)
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43; [2004] FCA 1038
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR; [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Plaintiff M1/2021vMinister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634; [1979] AATA 179
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 26 August 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Djasmeini, Minter Ellison Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 17 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NOMAN ALI
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
23 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent made on 1 December 2023.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS
INTRODUCTION
By application filed on 5 January 2024 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 1 December 2023. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) to cancel the applicant’s Student (Class TU) (Subclass 500) visa (the visa) under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.
BACKGROUND
The applicant is a citizen of Pakistan. He was granted the visa, the subject of these proceedings, on 20 May 2020.
On 5 July 2022, the delegate issued a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, on the basis that he may not have complied with visa condition 8202 of the Migration Regulations 1994 (Cth) (the Regulations) to be enrolled in a registered course of study.
The applicant provided a response to the NOICC on 21 July 2022, which included written submissions prepared by his representative, a confirmation of enrolment (CoE) for the Graduate Diploma of Management (Learning) at the Campbell Institute, his mother’s death certificate, and other academic records.
On 19 September 2022, the delegate made a decision to cancel the applicant’s visa under s 116(1)(b) of the Act and notified the applicant of the decision on the same day.
On 25 September 2022, the applicant applied to the Tribunal for review of the delegate’s decision.
The applicant appeared before the Tribunal on 1 December 2023 to give evidence and present arguments, with the assistance of an interpreter in the Urdu and English languages.
Various documents were provided to the Tribunal prior to the hearing, including several CoEs, academic records, and other documents which had been provided to the delegate.
On 1 December 2023, at the completion of the hearing, the Tribunal delivered an oral decision affirming the delegate’s decision to cancel the applicant’s student visa.
On 12 January 2024, the Tribunal provided a written statement of reasons for its oral decision.
THE TRIBUNAL’S DECISION
The issue before the Tribunal was whether the ground of cancellation existed and if so, whether the visa should be cancelled.
Based on information before it, that the applicant had not been enrolled in a full-time registered course of study from April 2021 to July 2022, the Tribunal found at [19] that a breach of visa condition 8202 had been established. Therefore, the only issue before it, as was before the delegate, was whether the visa should be cancelled: at [21].
The Tribunal considered the evidence provided in respect to the applicant’s enrolment in the Advanced Diploma of Civil Construction and Design at Australian Health and Management Institute (AHMI) and a Graduate Diploma in Management (Learning) at the Campbell Institute.
It also considered his claims that the breach occurred due to circumstances beyond his control, including an undiagnosed depressive disorder due to his mother's death, the pandemic, the Polytechnic Institute Australia’s (Institute) refusal to release him from a course, and personal issues relating to a relationship breakdown in February 2022, including difficulties accessing his son.
At [49], the Tribunal accepted that the death of the applicant’s mother in 2017 would have affected his studies. However, it did not accept his claim, absent medical evidence in that regard, that his mental health continued to deteriorate such that it affected his capacity to be productive from Semester 2 of 2018 or to engage in study in a registered course from April 2021.
At [52], the Tribunal had regard to the oral evidence of the applicant that his enrolment in the Bachelor of Networking and Telecommunications (BNT) course at the Institute was cancelled on 13 April 2021 and that he was informed of the cancellation on or about that date, however, he remained unenrolled until 19 July 2022. In that regard, at [53], the Tribunal did not accept the applicant's claim that he was prevented from enrolling in another course due to the Institute’s refusal to release him from the BNT course, as his enrolment in that course had already been cancelled.
At [56], the Tribunal noted that the applicant had enrolled in vocational courses at Campbell Institute in July 2022, ‘apparently without difficulty’, and that he could offer no reason why he had not done this since April 2021.
At [57], the Tribunal noted that the applicant had worked since arriving in Australia, and that he had not suggested his work activities were affected by mental health or relationship issues.
The Tribunal found no reasonable explanation for the applicant's poor academic history from mid-2018, let along his prolonged failure to maintain enrolment in a registered course of study from April 2021.
The Tribunal did not consider COVID-19 itself to be an acceptable excuse for the applicant’s failure to engage in productive study and considered any claim of deteriorating mental health precluding study lacked credible medical evidence.
The Tribunal rejected the agent’s submission that cancellation would have ‘extreme psychological consequences’ as there was no supporting evidence from the applicant or a qualified medical practitioner.
The Tribunal considered the submission that the applicant would return home ‘empty handed’ without any qualification to be ‘nonsense’ given the applicant’s completion of two courses, at Canterbury Business College in 2015 and a Diploma at Australian International Academy in 2020. The Tribunal was not convinced that was the applicant’s motive for wanting to undertake the courses at the AHMI or Campbell institute.
In attributing weight to the various factors, the Tribunal was satisfied that the reasons for cancelling the visa outweighed the reasons not to cancel it. Consequently, it proceeded to affirm the decision to cancel the applicant’s visa.
APPLICATION TO THIS COURT
The application for judicial review advanced two grounds of review.
The applicant filed an affidavit annexing the Tribunal’s Outcome of Review document. It was not necessary for the Court to take this affidavit into evidence as this document has been included in the Court Book, filed by the Minister.
The matter was listed for hearing on 26 August 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 9 July 2025.
At the hearing on 26 August 2025, the applicant appeared in person and was assisted by an interpreter in the Urdu and English languages. The Minister was represented by Mr Djasmeini of Minter Ellison.
Being mindful that the applicant was unrepresented, I explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
The applicant was guided through his application and was invited to make oral submissions in support of the grounds of review raised in the application, which he did.
GROUNDS OF REVIEW
The grounds of review advanced in the application (without alteration) are:
1.AAT has affirmed, departments cancelation decision and I am not satisfied with the decision. an error has been made. My believe is that I meet criteria
2.Visa cancelation has impacted my study and life big time. I am genuine student who came to Australia to fulfill my dreams of achieving higher education and go back to Pakistan. I have no intentions to stay after completion of my education and I have a clear immigration history.
The applicant’s oral submissions at the hearing largely cavilled with the findings and reasons of the Tribunal. He also indicated that his circumstances had since changed. When guided further about the need to identify a jurisdictional error in the Tribunal’s decision or process, the applicant said the Tribunal did not give him a chance to speak. When asked to provide further details, the applicant said he was unable to give evidence about his difficult relationship and the death of his mother. The applicant said he also told the Tribunal about the problems he had with the Institute, that he wanted to get a release letter, and that he was being blackmailed for extra money. He said the Tribunal had not taken this evidence into account.
Ground one
The ground, as advanced, in the context of the decision that was actually made by the Tribunal (which relates to the cancellation of the applicant’s student visa) does not appear to articulate any arguable ground of judicial review. The Minister contends that on this basis alone, the ground should be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J.
The Minister, nevertheless, properly acknowledged that the Tribunal had not expressly indicated in its reasons that it had regard to the relevant departmental policy; being the Department’s Procedures Advice Manual Guidelines — Procedural Instruction General visa cancellation powers (ss 109, 116, 128, 134B and 140) (the guidelines).
The Minister contended that the guidelines were not binding and, by their terms, were intended to be no more than procedural and policy guidance to decision makers applying the Act and could not be taken as mandatory relevant considerations: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 (El Ess) at [45].
The Minister submitted, nevertheless, that the Tribunal should generally apply relevant policy unless there were cogent reasons not to do so: ReDrake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640 per Brennan J. The Minister contended that, in any case, it was ‘tolerably clear’ that the Tribunal considered the guidelines in its assessment (as to whether to exercise its discretion to cancel the visa) given it attributed weight to the relevant factors contained in the guidelines: at [64].
Relevantly, the Minister submitted that the Tribunal had regard to applicant’s travel and stay in Australia, including at [45]–[48] and [57] when it considered his study history, the courses in which he enrolled, the cancellation of his enrolment, and his employment in Australia. It was submitted that the Tribunal also had regard to the extent of the applicant’s compliance with the visa conditions at [19], when it considered the length of time he had been in breach of condition 8202(2), which required him to be enrolled in a course of study.
The Minister submitted that the Tribunal had regard to the degree of hardship that may be caused to the applicant and his family members at [49] and [60] when it considered the death of his mother and the disappointment of his father if the visa was cancelled, and it assessed the applicant’s claims in relation to the psychological harm he may experience. It was also submitted that the Tribunal had express regard to the circumstances in which the ground of cancellation arose at [22], [30]–[34], including the matters raised by the applicant regarding the impact on him due to the death of his mother, the refusal of his education provider to release him, the impact of the pandemic, and the breakdown of a de-facto relationship.
The Minister contended that while the Tribunal did not appear to have expressly considered the remaining factors in the guidelines, there was no evidence before it relevant to these factors, and therefore there was no cause for the Tribunal to consider them.
Consideration
Under s 116(1)(b), the Minister may cancel a visa if they are satisfied that the visa holder has not complied with a condition of that visa. It is not in dispute that the applicant’s student visa was subject to condition 8202, which required to be enrolled in a registered course of study, and that he had failed to comply with this condition.
There are no matters specified in the Act or the Regulations which must be considered by the Tribunal when determining whether to exercise its discretion to cancel the applicant’s visa. I accept that the departmental policy guidelines were not mandatory relevant considerations, however, as acknowledged by the Minister, unless there were cogent reasons not to do so, decision makers should generally apply the relevant policy.
I accept the Minister’s submission that the Tribunal in this case considered the guidelines when assessing whether to exercise its discretion to cancel the applicant’s visa. This much is disclosed at [59] of its reasons, wherein the Tribunal stated it ‘broadly agree[d] with the relative weight which the delegate attached to the various factors he was required to consider and did consider in this case’. Some of the factors were expressly considered in detail by the Tribunal.
However, I do not accept the submission that the reason the Tribunal did not expressly consider the remaining factors in the guidelines was because there was no evidence before it relevant to these factors.
The factors (in the guidelines) which were expressly set out in the delegate’s decision (CB 196–198) included:
·Purpose of the visa holder’s travel and stay in Australia;
·The extent of their compliance with visa conditions;
·The degree of hardship that may be caused to the visa holder and any family members;
·The circumstances in which the ground for cancellation arose;
·The visa holder’s past and present behaviour towards the Department;
·Any consequential cancellations that may result;
·Legal consequences of a decision to cancel the visa;
·Australia’s international obligations; and
·Any other matters.
While the Tribunal was not required to consider the factors as a checklist or refer to factors that were not relevant or material to its decision, the Tribunal was nevertheless required to properly consider the factors relevant to the exercise of its discretion.
A factor which was relevant, for which there was some evidence before the Tribunal, albeit limited, concerned Australia’s international obligations. At [22], the Tribunal recorded that the applicant had given oral evidence about ‘the breakdown in February 2022 of a de facto relationship and the associated difficulties in gaining access to his son, who was born in July of that year’.
In his oral submissions, the applicant contended that he was not given an opportunity by the Tribunal to give evidence about his relationship. The applicant has not filed any affidavit evidence to support this contention; however, it is evident from the Tribunal’s reasons that little was recorded about the nature of the de facto relationship or the circumstances of the applicant’s son.
In any event, there was some evidence before the Tribunal, which was not rejected, that the applicant had a son who, at the time of the Tribunal’s decision, in January 2024, would have been about 18 months old. This information was relevant to the consideration of Australia’s international obligations under the Convention on the Rights of the Child (the CROC). Relevantly, this would have included consideration of the best interests of the applicant’s son, who may be affected by the decision to cancel the applicant’s visa.
While the Tribunal may have had regard to the applicant’s evidence that he had a son, there was no consideration of the circumstances of the child or how his interests may be affected if the applicant’s visa were cancelled.
The Tribunal was obliged, as part of its discretionary assessment, to properly consider the claims and evidence advanced by the applicant that he had a son in Australia from a past relationship and the difficulties he had experienced in gaining access to his son. Whilst the assessment and weight given to the evidence was entirely a matter for the Tribunal, it was nevertheless required to meaningfully engage with the representations made by the applicant: Plaintiff M1/2021vMinister for Home Affairs (2022) 275 CLR 582, 598–599 (Plaintiff M1/2021) at [24]–[25].
If the Tribunal’s reasons disclose that it ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error: Plaintiff M1/2021 at [27].
In this case, the Tribunal either overlooked or misunderstood the relevance of the evidence given by the applicant relating to his son. As noted earlier, the evidence was relevant to considering whether cancellation of the applicant’s visa would result in Australia breaching its international obligations under the CROC. The Tribunal indicated at [59] that it broadly agreed with the weight given by the delegate to the factors they had considered. In respect of Australia’s international obligations, the delegate was unable to give any weight for or against cancellation of the applicant’s visa because there was no information before them which indicated there were circumstances that engaged Australia’s international obligations. This was not the case on review, as there was information before the Tribunal that the applicant had an 18-month-old son in Australia. It was therefore not open for the Tribunal to adopt the delegate’s reasoning pertaining to Australia’s international obligations. It was required to conduct its own assessment of the evidence before it in respect of that factor.
While the claims and evidence regarding the applicant’s son may not have been expressly advanced in the context of the Tribunal’s consideration of Australia’s international obligations under the CROC, the issue was nevertheless raised by the applicant for the favourable exercise of the discretion. In the circumstances, it was not sufficient for the Tribunal to simply recount the evidence given. The Tribunal was required to evaluate the evidence and weigh it against the other factors it considered relevant to the exercise of its discretion.
I am satisfied that the Tribunal, when determining whether to exercise its discretion to cancel the applicant’s visa, erred by failing to properly consider and evaluate the claims and evidence raised by the applicant regarding his son. This was relevant to the Tribunal’s consideration of Australia’s international obligations under the CROC and the best interests of the applicant’s son. The error can therefore be characterised as a failure to properly consider relevant information or a failure to take into account a relevant consideration.
I am also satisfied that the error was material. While it is entirely a matter for the Tribunal, in the exercise of its discretion, to give the weight it considers appropriate to the various factors, it cannot be ‘affirmatively concluded’ that the outcome would have inevitably been the same had the error not occurred. Had the Tribunal properly considered and weighed the evidence pertaining to the applicant’s son, there exists a ‘realistic possibility’ that the outcome of the decision could have been different: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR at [16].
For these reasons, I am satisfied that jurisdictional error in the Tribunal’s decision has been established.
Ground two
As I have found jurisdictional error in the Tribunal’s decision, it is not necessary to consider ground two. For completeness, however, I will briefly say that the applicant’s complaint that his life has been impacted by the visa cancellation and that he is a genuine student is, at its highest, a plea for this Court to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31].
Ground two does not establish jurisdictional error.
CONCLUSION
As the Tribunal’s decision is affected by jurisdictional error, the Court will issue writs of certiorari and mandamus in this matter.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 23 September 2025
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