Ferdous v Minister for Home Affairs

Ferdous (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm the cancellation of his higher education sector visa. The cancellation was based on the applicant being charged with assault, a charge that had not yet been heard by a criminal court. The applicant disputed the evidence relating to the charge, but the Tribunal found that he posed a risk to his former girlfriend and that the criminal charges outweighed his personal circumstances.

The central legal issues before the court were whether the Tribunal failed to apply a proper test in the exercise of its discretion when considering the visa cancellation, and whether the Tribunal's decision was legally unreasonable. The applicant contended that the Tribunal's findings and the subsequent decision constituted jurisdictional error.

Judge Driver found that the Tribunal had made a jurisdictional error. The reasoning was that the Tribunal had based its decision on the *existence* of criminal charges, rather than on a finding that the applicant had actually committed the offence. The court held that it was not open to the Tribunal to make findings of fact about the applicant's alleged criminal conduct when those matters had not been determined by a criminal court. This approach meant the Tribunal had failed to apply the correct legal test in its exercise of discretion.

The court concluded that the Tribunal's decision was legally unreasonable and quashed the Tribunal's decision. The matter was remitted to the Tribunal for redetermination according to law.