Gul v Minister for Immigration

This matter came before Judge Antoni Lucev of the Federal Circuit Court of Australia. The applicant, Mr. Gul, sought judicial review of a decision made by the Minister for Immigration, represented by the Second Respondent. The dispute concerned the cancellation of Mr. Gul's student visa, which he contended was unlawful due to jurisdictional errors made by the delegate of the Minister and subsequently adopted by the Tribunal.

The court was required to determine two grounds of jurisdictional error. Firstly, whether the Tribunal adopted and affirmed a decision of a delegate that was itself affected by jurisdictional error, rendering it of no legal effect. Secondly, whether the Tribunal took into account irrelevant considerations. Mr. Gul argued that the delegate failed to properly address the statutory question regarding exceptional circumstances beyond his control that might excuse non-compliance with visa conditions, and that the delegate did not undertake a genuine inquiry into the facts of his case.

The court considered the principles of jurisdictional error as established in cases such as *Plaintiff S157/2002 v The Commonwealth of Australia* and *Minister for Immigration & Multicultural Affairs v Yusuf & Anor*. These principles indicate that jurisdictional error occurs when a tribunal identifies the wrong issue, asks the wrong question, ignores relevant material, or relies on irrelevant material, thereby exceeding or failing to exercise its statutory powers. The Minister argued that the Tribunal had conducted a fresh review of the delegate's decision on its merits, did not simply adopt the delegate's decision, and properly considered the evidence and exercised its discretion under section 116(1) of the *Migration Act 1958* (Cth) to cancel the visa. The Minister further contended that even if the delegate's decision contained jurisdictional error, the Tribunal's affirmation of that decision did not, in itself, constitute jurisdictional error on the Tribunal's part.

The court found that the Tribunal had not adopted the delegate's decision but had undertaken its own review of the merits. It was satisfied that Mr. Gul had not complied with Condition 8202(3)(a) of his student visa due to his education provider's certification of unsatisfactory course progress. The Tribunal then properly exercised its discretion under section 116(1) of the *Migration Act* to cancel the visa, a conclusion reasonably open on the evidence. Consequently, the court dismissed Mr. Gul's application.