Ali v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1546

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

  1. 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…

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Ali v Minister for Immigration and Citizenship [2025] FedCFamC2G 1546
Case
[2025] FedCFamC2G 1546
Decision Date

CaseChat Overview and Summary

In the case of Ali v Minister for Immigration and Citizenship, the applicant, a Pakistani citizen, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm a decision by a delegate of the Minister for Immigration and Citizenship to cancel his student visa. The Tribunal had upheld the delegate's decision, finding that the applicant had breached the condition of his visa to be enrolled in a full-time registered course of study from April 2021 to July 2022. The applicant argued that the Tribunal failed to properly consider Australia's international obligations under the Convention on the Rights of the Child in relation to his right to education.

The court considered whether the Tribunal was required to expressly consider each factor set out in the Department of Home Affairs’ Procedures Advice Manual Guidelines — Procedural Instruction General visa cancellation powers. The court found that while the Tribunal was not required to consider these factors as a checklist, it was required to properly consider factors relevant to the exercise of its discretion to cancel the visa. The court accepted that the Tribunal had considered the relevant guidelines when assessing whether to exercise its discretion to cancel the visa. However, the court found that the Tribunal failed to consider Australia's international obligations, which was a relevant factor for which there was some evidence before the Tribunal.

The court concluded that the Tribunal's failure to consider Australia's international obligations was an error of law. The court allowed the application for judicial review and remitted the matter to the Tribunal for reconsideration. The court did not make any orders as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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’.