Maharjan v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1348
•20 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maharjan v Minister for Immigration and Citizenship [2025] FedCFamC2G 1348
File number(s): SYG 2312 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 20 August 2025 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Subclass 500) visa – four grounds of judicial review – whether the Tribunal failed to review the decision of the Department – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to take into account relevant considerations – whether Tribunal was legally unreasonable – grounds of judicial review have no merit – impermissible merits review – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 116(1)(b), 348, 360
Migration Regulations 1994 (Cth) Schedule 8
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration v Li (2013) 297 ALR 225
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 104 Date of hearing: 4 August 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Rieschieck, Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2312 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROZEE MAHARJAN
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
20 AUGUST 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,100.00.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (the Tribunal), dated 25 August 2024, which affirmed a decision of a delegate of the first respondent (the delegate) to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (the visa).
For the reasons set out below, the application must be dismissed.
BACKGROUND
The applicant is a citizen of Nepal. She arrived in Australia in 2018.
On 22 November 2021, the applicant was granted the visa, subject to condition 8202 in Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations), which required that an applicant for the visa be enrolled in a full-time registered course of study.
On 26 July 2023, the Department issued a Notice of Intention to Consider Cancellation (NOICC), as the applicant ceased to be enrolled in a course of study from 22 December 2021 and therefore had failed to comply with condition 8202(2)(a) of the Regulations.
On 31 July 2023, the applicant provided a response to the NOICC.
On 10 August 2023, the delegate cancelled the applicant’s visa.
On 15 August 2023, the applicant applied to the Tribunal for review of the delegate’s decision.
On 21 August 2024, the applicant appeared before the Tribunal via audio visual link, assisted by a representative.
On 25 August 2024, the Tribunal affirmed the decision under review.
THE TRIBUNAL’S DECISION
The Tribunal was satisfied that the ground for cancellation in s 116(1)(b) of the Migration Act 1958 (Cth) (the Act) existed, and it proceeded to consider whether the visa should be cancelled.
A visa may be cancelled under s 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa.
Condition 8202 of the Regulations required that the applicant, in line with the student visa she was granted:
(a)be enrolled in a registered course, or in limited cases, a full-time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (2);
(b)not have been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and
(c)not have been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
The applicant’s study and enrolment history can be summarised as follows:
·Certificate IV in Ageing Support.
·Diploma of Leadership Management.
·PTE-A Exam preparation course.
·Bachelor of Community Service (enrolled and studied for three months only).
·Bachelor of Psychology (enrolment cancelled on 22 December 2021 after the grant of her student visa on 22 November 2021).
·Diploma of Community Services and Graduate Diploma of Management (enrolment cancelled when her student visa, which was granted on 22 November 2021, was cancelled in August 2023).
·Certificate III in Individual Support and Diploma of Community Services (enrolled after her bridging visa was granted).
The applicant was not enrolled for 19 months leading up to her receipt of the NOICC on 26 July 2023.
At the time of the Tribunal hearing, the applicant filed a course progress report dated 16 August 2024, indicating she had completed one unit, had continuing activity in ten units and had yet to commence four units.
The Tribunal in its consideration of the discretion to cancel the visa had regard to the circumstances of the case, including matters raised by the applicant and her representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The applicant advanced the following evidence in regard to the purpose of her travel and stay in Australia, and whether she had a compelling need to travel to or remain in Australia:
·The applicant worked at a café from November 2018, an aged care centre in 2020 until sometime after June 2021, a restaurant as a barista in or around August or September 2022, and then again at an aged care centre for a few months in 2023.
·The applicant gave and filed evidence about the impact of her father’s unexpected death in June 2021, her inability to travel to see him or attend his funeral due to the COVID-19 pandemic, and the impact of her divorce in February 2022 on her mental and emotional health.
·The applicant’s mother was financially reliant on her.
·The applicant was married to her ex-husband after their arranged marriage in October 2017. The applicant attempted to bring her husband as a dependent student visa holder. When his application was unsuccessful, the applicant stated that their relationship deteriorated. The applicant divorced from her husband in February 2022 [25].
·The applicant filed a Psychologist’s report dated 29 July 2024 (the Psychologist’s report), which, among other things, listed the applicant as moderately depressed, mildly anxious, with a moderately stressed mood, periodic low mood and occasional stress and worry. The report lists symptoms the applicant had suffered from in 2021, which improved by the end of 2022 [24].
·The applicant’s father suffered from health problems prior to her arrival in Australia, and he passed away in June 2021. The applicant alleged that she was not informed about her father’s ill health and that she was not able to travel back to Nepal to say goodbye to her father or attend the funeral due to the pandemic travel restrictions.
·The applicant had dealt with stress coming from her mother’s mental health issues following her father’s death.
The Tribunal empathised with the evidence of the applicant, however, it had to consider whether the applicant was residing in Australia with the intention to study, given that this was the basis on which her student visa was granted. The Tribunal was concerned about the applicant’s true intentions in residing in Australia.
The Tribunal acknowledged the applicant’s evidence that work distracted her from emotional and mental difficulties, and that she could not concentrate on her studies. The Tribunal remained concerned about the evidence before it [23].
The Tribunal noted that the applicant was able to successfully apply for a second student visa in November 2021 after the difficulties of her father’s passing away and her divorce. Further, the Psychologist’s report noted that the applicant’s mental health was improving towards the end of 2022. The Tribunal considered the extensive 19-month period in which the applicant was not enrolled in a course of study, particularly where she was employed for much of that period, and that there existed financial requirements to satisfy before the grant of a visa.
The Tribunal did not consider that the applicant had a compelling need to remain in Australia. The Tribunal placed some weight in favour of cancelling the applicant’s visa in this regard.
In regard to the circumstances in which the cancellation arose, the Tribunal noted and accepted the following:
·The applicant and her family have faced health and financial difficulties. The applicant had been suffering from mental health issues to some extent during her period of breaching the visa conditions.
·Although the Tribunal empathised with the applicant and her family in relation to the suffering experienced, it noted that the option to return to Nepal to avoid breaching the visa conditions was always open to the applicant. The conduct of the applicant, in failing to resume study for 19 months, is not conduct that is expected of a genuine student who takes their responsibilities in residing in Australia, on the basis of a student visa, seriously.
·At [36], the Tribunal did not find the applicant’s submissions as to her seeking professional mental health assistance to be persuasive. The Tribunal was concerned that the applicant procured the Psychologist’s report to bolster her prospects of avoiding the cancellation of the visa. There was no evidence before the Tribunal to show that the applicant had continued to seek any mental health treatment.
·The Tribunal found it difficult to accept that the applicant was finding her personal circumstances too challenging to study whilst still being able to work: [36].
·The Tribunal acknowledged that the applicant’s family’s health and financial positions were out of the applicant’s control, and that the applicant’s marital dynamic and mental health, to some extent, may have been out of her control. However, the Tribunal did not consider that the applicant was not in a position to comply with the conditions of the visa, as it is a visa holder’s responsibility to take appropriate action to avoid breach and ensure compliance. The Tribunal gave equal weight in favour and against cancelling the applicant’s visa in that regard.
The applicant otherwise complied with the visa conditions. At [38], the Tribunal noted the applicant had not made progress from the time her second student visa was granted in November 2021 until July 2023. This behaviour did not reflect that of a genuine student who had been onshore on the basis of a student visa. The Tribunal gave the extensive time during which the applicant was non-compliant with visa conditions weight in favour of cancelling the applicant’s visa.
The Tribunal considered the degree of hardship that may be caused to the visa holder and any family members from [39] – [43]. The Tribunal appreciated the hardship that the applicant and her family may face regarding the cancelled visa but ultimately decided that the hardship did not outweigh the breach. The Tribunal gave this limited consideration.
The Tribunal gave some weight against cancelling the applicant’s visa in regard to any adverse conduct by the applicant to the Department.
The Tribunal gave little weight to the consideration of mandatory legal consequences which may eventuate from the cancellation of the applicant’s visa and considered that it would result in the following [46]:
a. the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;
b. the applicant will have limited options to apply for further visas in Australia;
c. the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.
The Tribunal gave little weight to this consideration because:
a. these are the intended consequences of the legislation when a visa is cancelled under these grounds;
b. it reflects the seriousness with which the Department takes this type of cancellation ground;
c. the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.
The Tribunal noted that it reviewed the Provider Registration and International Student Management System (PRISMS) records and found that the records provided for the purposes of review were consistent. No weight was placed against the applicant in this regard.
The Tribunal affirmed the decision to cancel the applicant’s student visa.
GROUNDS OF JUDICIAL REVIEW
The applicant advances two grounds of judicial review contained in an Originating Application filed on 19 September 2024. As understood by the first respondent and adopted by the Court, the grounds are as follows (less particulars):
1.The Tribunal's decision was affected by jurisdictional error because the Tribunal failed, pursuant to its obligation in section 348 of the Migration Act 1958 (Cth), to comply with the condition of the exercise of decision-making power which was to review the decision of the Department.
2.The Tribunal’s decision was affected by jurisdictional error because the Tribunal denied the procedural fairness.
3.The Tribunal made jurisdictional error by failing to take into account relevant considerations and ignoring relevant material.
4.Tribunal made jurisdictional error by being unreasonable and by constructive failure to exercise jurisdiction.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant did not request an interpreter. The Court was satisfied the applicant’s English language skills were more than adequate to participate in the hearing.
Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and a copy of the first respondent’s written submissions. The Court also ensured the applicant had access to a pen and paper so she could take notes during the course of the hearing, should she so wish to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material were provided to the Court by the applicant in advance of the hearing. At the hearing, the applicant provided the Court with a four-page document setting out the issues she wished to raise in support of her case (the applicant’s written submissions). As these had not been previously provided to the legal representative of the first respondent, the Court adjourned to allow time for these to be read. The legal representative for the first respondent informed the Court that he was happy to proceed, as the matters raised in the applicant’s written submissions only amplified the material in the grounds of judicial review.
The matters contained in the applicant’s written submissions can be summarised as follows:
·a failure by the Tribunal to consider or properly consider the applicant’s compassionate grounds;
·a misinterpretation of the “compelling need to remain” on the basis that the applicant had a financial responsibility to support her mother, following the death of her father;
·a lack of procedural fairness in that the applicant was not given proper notice or opportunity to respond to how the Tribunal would interpret or downplay the Psychologist’s report;
·the Tribunal applied an excessively high weight to the applicant’s non-compliance with her visa conditions and an inadequate weight to the mitigating circumstances;
·the Tribunal made incorrect assumptions about the applicant’s mental health recovery and failed to account for her fluctuating depression symptoms, lack of early intervention, and that her coping strategy was to work and isolate herself;
·the applicant submitted that additional strong points in favour of the visa not being cancelled included that she had not demonstrated any other non-compliance and that she was now enrolled, stable and relatively recovered, as shown in her new enrolment and ongoing treatment;
·the Tribunal noted that the applicant had complied with the visa conditions where possible, however, it appeared to disregard the compliance she had demonstrated;
·the applicant acknowledged that she discontinued her studies temporarily whilst she continued working as a means of self-support, and that this was a coping mechanism, not a misuse of the visa;
·the first respondent’s legal advisers incorrectly sent the applicant a Court book relating to another person; and
·whilst the Tribunal acknowledged some of these points in the applicant’s favour, it still upheld the cancellation, which involved an error of judgement on the Tribunal’s part.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if she wished to state anything in reply. The applicant answered “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent addressed each ground and its corresponding particulars in turn.
Ground One alleges that the Tribunal failed, pursuant to s 438 of the Act, to review the decision of the Department. The first respondent argues that this ground cannot succeed for the following reasons.
Particular (a) of Ground One contends that the Tribunal failed to review the applicable legislation and ignored relevant material available. At [8] – [9] of the decision record, the Tribunal outlined the statutory framework and made a finding that the discretion to cancel under s 116(1)(b) had been enlivened. At [14], the Tribunal noted that the legislation did not require mandatory cancellation, and it must consider whether the visa should be cancelled. Further, in considering its discretion, there are no specified matters that must be considered under the Act and the Regulations; however, it had regard to the circumstances of the case and the PAM3’s general visa cancellation powers. At [7], the Tribunal acknowledged that it had regard to all information before it, including departmental files.
As to particular (b), the Tribunal had regard to all the documents the applicant submitted prior to the decision, consisting of submissions from the Migration Agent, Confirmation of Enrolment’s, letter from Lead college, and the PRISMS records at [7], [12], [18] and [29] of the decision. Insofar as the applicant argues that the Tribunal did not give those documents proper weight, it is a matter for the Tribunal how much weight should be afforded: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 (Lee) per French J.
Particular (c) fails on its facts in alleging that the Tribunal failed to exercise its core function by discrediting the evidence, such as the applicant’s father’s death certificate and divorce letter. At [22], the Tribunal acknowledged the applicant’s father’s death and the applicant’s divorce; however, it ultimately found that there was no compelling need for the applicant to remain in Australia at [32].
As to particular (d), the applicant was invited to and attended a hearing before the Tribunal with her representative pursuant to s 360, despite arguing that the Tribunal denied her an opportunity for proper review of the delegate’s decision.
Ground Two is a contention that the decision of the Tribunal was affected by jurisdictional error because the Tribunal denied the applicant procedural fairness.
Particular (a) reads “The Tribunal was unreasonable in not considering the submitted documents when the first decision was made.” The first respondent sets out that the test for unreasonableness is “necessarily stringent”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11] per Kiefel CJ. It does not involve the Court re-making the decision according to its own view of reasonableness: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [59] per Allsop CJ, Griffiths and Wigney JJ.
The Tribunal had considered all the documents provided to it as annexed in the applicant’s response to the hearing invitation form.
By particular (b), the applicant argues the Tribunal had already made “their mind to affirm the decision” and did not give weight to the documents submitted. The applicant fails to identify what documents were not considered. Insofar as the applicant alleges bias on the part of the Tribunal, the complaint cannot be made out as there is no evidence to suggest or support a finding of bias or reasonable apprehension of bias, given that it must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J.
Particular (c) is inaccurate in alleging that the Tribunal did not give any consideration to the stressful events that occurred in the applicant’s life in Australia when the Tribunal considered the applicant’s father’s death, her divorce and mental difficulties at [22] – [23]. The Tribunal ultimately found there was no compelling reason for the applicant to remain in Australia on the material that was before it [32].
By Ground Three, the applicant argues that the Tribunal failed to take into account relevant considerations and ignored relevant material.
The applicant contends at particular (a) that the Tribunal did not review all the documents submitted, and that this was unreasonable. However, the applicant has not identified what documents were not reviewed, and the decision record at [7], [12], [18], [29] and [48] indicates the Tribunal did review the documents provided by the applicant.
Particular (c) fails on its facts as the Tribunal did consider the applicant’s mental health at [24].
Particular (d) alleges that it was unreasonable and illogical for the Tribunal to question the applicant on her course progression due to her circumstances of losing her father and divorcing her husband. It was open to the Tribunal to make a finding in regard to the applicant’s course progression in circumstances where her lack of progression occurred from November 2021 to July 2023, which was considerably lengthy given the death of her father in June 2021 and her divorce application in February 2022. Despite her personal difficulties, the applicant applied for a student visa in November 2021, five months after her father passed away and four months before her divorce. Further, the Psychologist’s report the applicant submitted indicated her mental health improved towards the end of 2022.
Particular (e) is a complaint that the applicant had made clear her intention to pursue studies, but the Tribunal did not take this into consideration. At [17], the Tribunal noted that the applicant was enrolled in a Certificate III in Individual Support and a Diploma of Community Services
Particular (f) does not reveal jurisdictional error on the part of the Tribunal, as the applicant has not identified how the Tribunal was unreasonable.
Ground Four argues that the Tribunal made a jurisdictional error by being unreasonable and by a constructive failure to exercise jurisdiction.
Particular (a) does not reveal what assumptions the Tribunal made, such that its decision would be based on “hypothetical assumptions” and not facts or evidence. The ground does not reveal jurisdictional error in this regard.
Particular (b) is an allegation that the Tribunal has not provided sufficient weight to competent documents or the applicant’s submissions. This was considered at [7], [12], [18], [29] and [48], and it was for the Tribunal to find the weight to be afforded to it.
As to particular (c), the Tribunal did consider the applicant’s mental health.
With regard to particular (d), the Tribunal did not make assumptions based on the applicant’s degree of emotion, psychological hardship, psychiatric hardship, or suffering, rather it based its findings on the applicant’s self-reporting as contained in the Psychologist's report, which noted that her mental health had improved towards the end of 2022.
In regard to the additional matters raised in the applicant’s written submissions provided to the Court, the respondent submitted that these were adequately dealt with in their written submissions. The applicant’s written document did not identify any jurisdictional error, rather, it merely invited the Court to undertake impermissible merits review.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
Given that many of the matters raised by the applicant go to the merits of the Tribunal’s decision, the Court needs to consider whether the decision is legally unreasonable. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li (2013) 297 ALR 225 (Li) at [28]; or where a decision has been made that lacks an “evident and intelligible justification”: Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11], Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
First, the Court is reasonably satisfied that the Tribunal correctly found at [10] – [14] that a ground for the cancellation of the applicant’s visa existed. What then followed was an orthodox consideration of whether or not the applicant’s visa should be cancelled by reference to the matters set out in the PAM3. This involved considering each factor, together with the evidence before the Tribunal and attaching appropriate weight to that factor either in favour of the applicant or against her in terms of whether the visa should be cancelled.
Ground One
Ground One is a claim of jurisdictional error on the basis that the Tribunal failed, pursuant to its obligation under s 348 of the Act, to review the decision of the Department.
Section 348 reads as follows:
1.If an application to the ART for review of a reviewable migration decision or a reviewable protection decision is properly made under sections 347 or 347A, the ART must review the decision.
2.However, the ART must not review, or continue to review, a reviewable migration decision or a reviewable protection decision in relation to which the Minister has issued a conclusive certificate under s 399.
What follows in the four particulars attached to Ground One are claims that the Tribunal ignored relevant material made available to it, failed to take into account and give proper weight to documents submitted prior to the decision, failed to properly exercise its core function by discrediting the evidence submitted (such as the applicant’s father’s death certificate and the applicant’s divorce letter), and denied the applicant a proper opportunity for a review of the delegate’s decision.
I do not accept that the Tribunal breached s 438 of the Act. The Tribunal’s decision record clearly indicates that the Tribunal undertook a detailed consideration of the material that was before it, and gave the material appropriate weight in coming to the conclusion that it did, that the applicant’s visa should be cancelled.
In terms of particular (a), I am not satisfied that the Tribunal ignored any relevant material. The Tribunal was well aware that it had the discretion to not cancel the applicant’s visa, however, correctly, in my view, found that there was first grounds for the visa cancellation. Having made that determination, the Tribunal then considered all the material before it in favour of cancellation, and determined that this material outweighed the material in favour of not cancelling the applicant’s visa. No error arises.
Particular (b) is an assertion that the Tribunal failed to take into account the documents submitted prior to the decision and give proper weight to that evidence. No particulars are provided as to what documents were not considered. Having reviewed the decision, I am satisfied the Tribunal took into account all relevant material, including the documentary information that was before it. The weight to be given to the information before the Tribunal was a matter for the Tribunal: Lee. I am not satisfied that there was anything legally unreasonable in the manner in which the Tribunal considered the evidence that was before it, and the manner in which the Tribunal came to its conclusion. The conclusion reached by the Tribunal was open to it, based on the evidence that was before it, and for the reasons it gave. Particular (b) has no merit.
Particular (c) contends the Tribunal failed to exercise its core function by discrediting the evidence of the applicant’s father’s death certificate and the applicant’s divorce letter. I accept the first respondent’s submission that this particular must fail on its facts. The Tribunal did not discredit the death certificate or the divorce letter. The Tribunal accepted that the applicant’s father had died and that the applicant was divorced: [22].
Particular (c) is a bare assertion that the Tribunal denied the applicant the opportunity for a proper review. Without proper particulars, this assertion is incapable of being responded to. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
I am satisfied the Tribunal complied with all relevant procedural fairness requirements, including properly inviting the applicant to the hearing, providing the applicant with an opportunity to present evidence and make any arguments that she wished to in her favour. Particular (d) has no merit.
Ground Two
Ground two is an assertion of a denial of procedural fairness.
Particular (a) asserts that the Tribunal was unreasonable and did not consider the submitted documents when the first decision was made. It is not clear what the phrase “first decision” refers to. If it refers to the delegate’s decision, the Court has no jurisdiction to review the delegate’s decision. The Court’s jurisdiction is limited to a judicial review of the Tribunal’s decision.
The test for legal unreasonableness is set out above. I am not satisfied that the decision of the Tribunal is tainted by legal unreasonableness. The Tribunal properly considered all the material that was before it and came to a decision which was within its legitimate decisional freedom, based on the evidence that was before it and for the reasons it gave. Particular (a) has no merit.
Particular (b) suggests bias and a failure of the Tribunal to give proper weight to documents submitted. The weight to be given to the various pieces of evidence before the Tribunal was a matter for the Tribunal.
In relation to the claim of bias, a claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. It is a rare and exceptional case that bias will be demonstrated solely from the published reasons of the decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision maker approached their task other than with a mind open to persuasion: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
There is nothing before the Court by way of evidence that would even point towards bias on behalf of the Tribunal. I am satisfied that the Tribunal adopted an open-minded approach to the applicant’s claims, but ultimately found against her, for the reasons it gave. Particular (b) has no merit.
Particular (c) alleges a failure to take into account relevant considerations, including a series of stressful events that happened to the applicant.
I am satisfied that the Tribunal clearly considered that the applicant’s father had passed away, that she had gotten divorced, and that she suffered mental difficulties. Further, no particulars are provided as to what material was not considered or taken into account. Again, in the absence of meaningful particulars, this particular consists of a bare assertion of error without any substance. Particular (c) has no merit.
Ground Three
Ground Three is an assertion that the Tribunal failed to take into account relevant considerations and ignored relevant material.
Particular (a) complains that the Tribunal did not review all the submitted documents. Again, there is no identification of which documents were not reviewed. I am satisfied that the Tribunal did review all the relevant documents that were before it.
The following particular is identified as particular (c). There does not appear to be any particular (b). Particular (c) complains that it was a logical error that the Tribunal did not consider the applicant’s mental health and mistakenly came to a conclusion, and in doing so made a jurisdictional error. I am satisfied that the Tribunal clearly considered the applicant’s mental health at [24].
This particular, if anything, simply invites the Court to undertake impermissible merits review.
Particular (d) complains that as the applicant lost her father and got divorced around the same time, this affected her mental and emotional health. This particular complains that it was unreasonable and illogical for the Tribunal to question the applicant on her course progression in those circumstances. The applicant’s course progression was an essential and integral matter for the Tribunal to consider. As noted by the first respondent, there was a lack of progression during the period from November 2021 to July 2023. The Court agrees that this was a lengthy period. The applicant’s father passed away in June 2021, and her divorce occurred in February 2022. As noted by the Tribunal, the applicant successfully applied for a second visa in November 2021, and that the applicant’s mental health improved towards the end of 2022.
I am satisfied there is nothing before me to indicate that the Tribunal acted either unfairly or unreasonably in considering the applicant’s circumstances, notwithstanding the particular issues that the applicant raised. Particular (c) has no merit.
Particular (d) is an assertion that the applicant arrived in Australia to pursue her studies and get settled in her life. The applicant stated she made it clear to the Tribunal that she would be pursuing her studies. The applicant claimed the Tribunal did not consider her circumstances. This is not a proper ground of judicial review and again, invites the Court to undertake impermissible merits review.
Ground Four
Ground Four is a claim of legal unreasonableness. As set out above, the test for legal unreasonableness is stringent and will only arise in very limited circumstances. It is not an avenue for the Court to impose its own subjective views as compared to those of the Tribunal.
Particular (a) asserts that the Tribunal’s decision was based on a hypothetical assumption and not a conclusion based on a set of facts or evidence. No particulars are provided in support of what is a bare assertion. In the absence of further material, this particular is incapable of being responded to and has no merit.
Particular (b) asserts the Tribunal did not provide sufficient weight to documents, the applicant or her migration agent’s submissions. I am satisfied that the Tribunal considered all the evidence before it. Again, this ground goes no higher than inviting the Court to undertake impermissible merits review. Particular (b) has no merit.
Particular (c) to a large extent simply restates material set out above that the Tribunal disregarded the applicant’s personal circumstances, her psychological state, and her personal mental state after her father’s death and her divorce. I am satisfied that the Tribunal properly considered this material, but found against the applicant based on the evidence before it and for the reasons it gave. Again, this particular rises no higher than seeking the Court to undertake impermissible merits review.
Particular (d) asserts that the Tribunal made assumptions in relation to the degree of suffering the applicant experienced in relation to her emotional or psychological state. The Tribunal noted the applicant’s Psychologist had reported that her mental health had improved towards the end of 2022 based on the applicant’s self-reporting. There was no material before the Tribunal to the contrary. The finding was open to the Tribunal based on the evidence that was before it. Particular (d) has no merit.
The Court is also considered the applicant’s written submissions provided on the morning of the hearing. To a large extent, they simply take issue with the factual findings of the Tribunal and amount to no more than an invitation for the Court to undertake merits review.
At Point B of the applicant’s written submissions, the applicant contends that the Tribunal misinterpreted the consideration of a compelling need to remain. The applicant cites her financial responsibility to support her mother, particularly in light of her father's passing. The applicant contends that the term "compelling" is not defined rigidly and should be interpreted in context of the case, taking into account meaningful family hardship. I am satisfied that the Tribunal properly considered the need for the applicant to remain in Australia, and its conclusion was open to it based on the evidence before it.
Point C of the applicant’s written submissions complains the applicant was not given proper notice of the opportunity to respond to how the Tribunal would interpret or downplay the Psychologist’s report and the timing of the diagnosis. It was the responsibility of the applicant to provide her evidence in sufficient detail to enable the Tribunal to come to the conclusion that she was entitled to the visa she sought.
In Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ:
The want of procedural fairness was said to lie in the [Tribunal] not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the [Tribunal] are adversarial rather than inquisitorial or that in some way the [Tribunal] is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the [Tribunal] are inquisitorial and the [Tribunal] is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well founded fear of persecution for a Convention reason. The [Tribunal] must then decide whether that claim is made out.
Further, there is no obligation on the Tribunal to disclose to the applicant its doubts or concerns with the evidence she presented.
Point E of the applicant’s written submissions claims the Tribunal made assumptions about the applicant’s mental health. Again, it was a matter for the applicant to present her evidence in full. The Tribunal merely noted the Psychologist’s report indicated that the applicant’s mental health had improved. There was no evidence of fluctuating depression symptoms or other ongoing mental health concerns.
I am satisfied the Tribunal did take into account the fact that the applicant was able to work and gave that fact appropriate weight.
The unfortunate fact that the applicant was sent a Court book that related to another matter, while being a breach of privacy, does not constitute a jurisdictional error in relation to the applicant’s case.
None of the matters raised in the applicant’s written submissions reveal jurisdictional error on the part of the Tribunal.
As the applicant is unrepresented, the Court has carefully perused the relevant Court books and associated documentation in relation to the matter. The Court is unable to discern any unarticulated jurisdictional error
DETERMINATION
In these circumstances, that being no merit in any of the applicant’s claims, the application must be dismissed.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 20 August 2025
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