Naeem v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1186
•30 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Naeem v Minister for Immigration and Citizenship [2025] FedCFamC2G 1186
File number(s): MLG 2113 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 30 July 2025 Catchwords: MIGRATION – Temporary Work (Skilled) (Subclass 457) visa – Visa cancellation – Exercise of discretion by Tribunal - Whether Tribunal took account of irrelevant considerations – Whether Tribunal failed to consider relevant considerations - Whether unreasonable to refuse to grant further adjournment to obtain a suitable employer sponsor - Whether an exclusion period applied - Application dismissed. Legislation: Migration Act1958 (Cth) ss 116(1)(g), 140M
Migration Regulations1994 (Cth) reg 2.43(1)(l)(iv), cl 4013Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184
Lam v Minister for Immigration and Border Protection [2019] HCATrans 43
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2024) 280 CLR 321; [2024] HCA 12
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 [1986] HCA 40
Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41]
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Nweke v Minister for Immigration and Citizenship [2012] FCA 266
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Snedden v Minister for Justicefor the Commonwealth of Australia [2014] FCAFC 156 at [147]
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297Division: Division 2 General Federal Law Number of paragraphs: 69 Date of last submission/s: 20 June 2025 Date of hearing: 17 June 2025 Place: Melbourne Solicitor for the Applicants The first applicant appeared in person Solicitor for the Respondents Mr R O’Shannessy, Mills Oakley ORDERS
MLG 2113 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD NAEEM
First Applicant
IRAM JAMIL
Second Applicant
HASHEEM NAEEM
Third Applicant (by his litigation guardian the First Applicant)
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
30 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship;
2.The application for judicial review filed 3 July 2019 be dismissed; and
3.The first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application for review fixed in the sum of $5,000.00.
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 CORBETT
The applicants seek judicial review of a decision of the second respondent (Tribunal) made on 18 June 2019. The Tribunal affirmed the decision of the first respondent (Minister) to cancel the first applicant’s Temporary Work (Skilled) (Subclass 457) visa (visa).
Reference in these reasons to ‘CB’ pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit ‘R2’.
BACKGROUND
The first applicant is a citizen of Pakistan (CB 58). He first arrived in Australia in October 2006 on a Student visa. At that time, he intended to study in Australia and return to Pakistan (CB 249 [21]).
The second applicant is the wife of the first applicant and the third applicant is their son.
In August 2013, after completion of a Diploma of Hospitality Management and a Diploma of Business Management the first applicant was granted the visa to work as a cook with Awan & Co Pty Ltd at a restaurant/café known as Café 64. The second and third applicants were granted visas as members of the first applicant’s family unit.
On 29 November 2013 the approval of the sponsoring employer was cancelled under s 140M(1)(a) of the Act (CB 9).
On 7 July 2015, a delegate of the Minister sent the first applicant a Notice of Intention to Consider Cancellation (Notice) under s 116 of the Migration Act1958 (Cth) (Act) (CB 8-12).
In the Notice, the delegate informed the first applicant that on 29 November 2013, approval of the standard business sponsor that nominated the first applicant (Anwan & Co Pty Ltd) had been cancelled and the sponsor barred from making future applications for approval for a period of five years. The first applicant was given the opportunity to respond to the information in the Notice and give reasons why the visa should not be cancelled (CB 9).
On 21 July 2015 the applicants’ appointed migration agent sent a submission to the delegate explaining why the visa should not be cancelled (CB 33-6).
On 28 July 2015, the delegate of the Minister cancelled the first applicant’s visa pursuant to s 116 (1)(g) of the Act and provided written reasons for the cancellation (CB 38-51).
On 4 August 2015, the first applicant applied to the Tribunal for review of the delegate’s decision and provided a copy of the delegate’s decision with his application (CB 58-74).
On 6 May 2016, the Tribunal affirmed the decision to cancel the first applicant’s visa (CB 172). The first applicant then sought judicial review of the Tribunal’s decision by the Federal Circuit Court of Australia (as it then was).
On 24 September 2018, her Honour Judge Riley made orders setting aside the decision of the Tribunal and remitted the matter to the Tribunal for determination according to law. Her Honour found that it was unreasonable for the Tribunal to have refused to allow the first applicant an adjournment of the hearing of his application for review until the outcome of a further nomination approval application by an alternative sponsor (Kumar Associates Proprietary Limited), which was then before the Minister (CB 180-1).
Following remittal to the Tribunal on 10 April 2019, the Tribunal invited the applicant pursuant to s 359A of the Act to comment on information as follows (CB 200-1):
•On 21 July 2016, the department refused a 457 nomination in respect of an application lodged by Kumar Associates Proprietary Limited ATF Kumar Associates and Investment Trust; and
•Department records indicate that the applicant was not presently the subject of an approved nomination or applications.
The Tribunal informed the first applicant that the information on which he was requested to comment was relevant to the review of his application for the visa and was necessary to determine whether to exercise the power to cancel the visa (CB 200-1).
On 24 April 2019, the first applicant responded to the request for information and confirmed that he was not currently the subject of an approved nomination but was then talking to a prospective employer who may be willing to nominate the first applicant for the visa. The first applicant also noted that any new employer may now need to nominate him for a Subclass 482 visa. The first applicant asked if a s 482 nomination could be joined to a pending 457 visa application (CB 202).
On 30 April 2019, the Tribunal invited the applicants to attend a hearing on 13 June 2019 and attached a response to hearing invitation (CB 205-213).
On 12 June 2019, the first applicant provided the Tribunal with the completed response stating that he would attend the scheduled hearing at Melbourne (CB 214-7).
On 13 June 2019, there was a hearing before the Tribunal. The first applicant appeared in person and gave evidence (CB 237-9).
On 18 June 2019, the Tribunal delivered written reasons affirming the decision to cancel the visa (Decision) (CB 245-253).
TRIBUNAL DECSION
In the Decision, the Tribunal referred to the request for information and the first applicant’s response dated 24 April 2019. The Tribunal noted the power to cancel the visa under s 116 of the Act and in particular, s 116(1)(g) of the Act.
The Tribunal found that the standard business sponsorship of the first applicant’s former employer was cancelled under s 140M of the Act and this was not disputed by the first applicant. The Tribunal was satisfied that there were grounds for cancellation under s 116(1)(g) and proceeded to consider whether any discretionary grounds exist not to cancel.
The Tribunal referred to the guidance provided in the Department’s Procedures Advice Manual (PAM3) as to the discretionary considerations that the Tribunal may take into account. The Tribunal then considered the following discretionary matters:
•the purpose of the applicant’s travel and stay in Australia;
•the degree of hardship the applicant may be caused by the visa cancellation;
•the circumstances in which the ground for cancellation arose;
•the applicants past and present behaviour towards the Department;
•whether cancellation would result in the visa holder being an unlawful non-citizen and subject to detention;
•whether any international obligations would be breached as a result of the cancellation;
•any consequential visa cancellations under s 140 of the Act; and
•the applicant’s request in his response letter dated 24 April 2019 to be given a further opportunity to find a new employer sponsor.
After considering each of these discretionary grounds, the Tribunal was not satisfied that there were grounds upon which to exercise the discretion not to cancel. The Tribunal affirmed the delegate’s decision to cancel the first applicant’s visa (CB 253 [34]).
On 3 July 2019, the first applicant commenced proceedings in this Court for judicial review of the Decision pursuant to s 476 of the Act (CB 254-9).
PROCEEDINGS IN THIS COURT
The application for judicial review was supported by an affidavit by the first applicant affirmed on 3 July 2019 (CB 260-2). Annexed to the affidavit was a copy of the Decision (CB 263-71). The first applicant also stated that in determining his application for review, the Tribunal took into account irrelevant considerations and failed to take into account relevant considerations. In doing so, the Tribunal erred at law and the decision was affected by jurisdictional error.
The application for judicial review contained the following grounds of review (verbatim):
1. The Tribunal took account of irrelevant considerations when considering whether its power to cancel the visa should be exercised.
Particulars
•In determining that the purpose of his further stay in Australia was no longer viable and that he had no compelling need to stay in Australia, it was unreasonable for the Tribunal to take into account the length of his unemployment since the cancellation. The evidence before the Tribunal was that the applicant was not granted work rights following the cancellation of his 457 visa on 28 July 2015 despite making numerous applications. The applicant was only granted work rights in December 2018 once the Federal Circuit Court remitted the application back to the Tribunal.
•In determining that there would be no hardship caused by the visa cancellation, it was unreasonable for the Tribunal to take into account the applicant's choice to stay in Australia for almost 4 years since the visa cancellation and his ability to survive with no income during this period. The evidence before the Tribunal was that the applicant was awaiting the outcome of an appeal in the Federal Circuit Court which was only handed down on 24 September 2018. During this period, the applicant and his family had survived on their savings and by hon-owing money as he was not granted work rights.
•The Tribunal Member failed to have regard to the High Court decision in Lam v Minister for Immigration and Border Protection [2019) HCA 43 (12 March 2019) which found that a decision maker's failure to wait before making a decision presents as so arbitrary so is to be unreasonable.
•The High Court in this case stated the following:
"For all that appears from the Decision Record (and there is no other evidence to the contrary) the delegate entirely failed to engage with the possibility of delaying her decision until the likely completion of the TRA review within the next 30 days. So to approach the matter, reflects a degree of insouciance which surely cannot be regarded as an acceptable discharge of the statutorily implicit requirements of the decision-making function. To adopt and adapt the language of French CJ in Li, it bespeaks a degree of arbitrariness which renders it legally unreasonable."
•The Applicant informed the Tribunal that he only had been granted work rights from the department on 20 December 2018 having been denied work rights by the department since 28 July 2015 and because he had no work rights it was impossible for him to find another sponsor to nominate him in such a short period of time.
•The Applicant asked the Tribunal to not make any decision and to wait until a new nomination had been lodged. The applicant asked the tribunal for 60-90 days to locate another employer and that he was confident of finding another employer now that he had been granted work rights. Despite this request, the Tribunal proceeded to make a decision knowing full well that the applicant had been denied work rights by the department for over 4 years and only had work rights since 20 December 2018 (a period of 6 months).
2. The Tribunal failed to take account of relevant considerations when considering whether its power to cancel the visa should be exercised.
Particulars
•The Tribunal failed to give sufficient weight to the purpose of the applicant's travel to and stay in Australia, and whether the applicant has a compelling need to travel to or remain in Australia. It was not open to the Tribunal to dismiss the applicant's purpose of remaining in Australia because he had not worked as a Cook for a period of time. It was not possible for the applicant to find other employment and continue working as a Cook as he was not granted work rights.
•The Tribunal failed to give sufficient weight to the degree of hardship that may be caused to the applicant should his visa be cancelled. Namely, the financial, psychological and emotional hardship on the applicant and his family should they have to depart Australia. It was not open to the Tribunal to dismiss these hardships merely because the applicant had stayed in Australia awaiting the outcome of his appeal, had family in his home country or because the Tribunal believed the applicant would find suitable employment to support his family.
•The Tribunal failed to give sufficient weight to the applicant's circumstances in which the cancellation arose. Namely, the lack of correct advice from his then migration agent and his ceased employment due to no fault of his own.
•The Tribunal failed to give sufficient weight to the mandatory legal consequences on the applicant should his visa be cancelled. Namely, a three year exclusion period.
On 26 September 2024, a Registrar of the Court made orders for the filing and service of further evidence, submissions and a Court Book. The Registrar ordered that the applicants file and serve at least 28 days before the hearing written submissions, any amended application with proper particulars and any additional evidence on which the applicants seek to rely. On 5 December 2024 a Registrar of the Court made further procedural orders including that the first applicant be appointed litigation guardian for the third applicant.
On 6 May 2025, the application for judicial review was listed for final hearing before this Court to take place in person at Melbourne on 17 June 2025. The applicants did not file or serve a written submission, amended application or further evidence.
At the hearing before this Court on 17 June 2025, the first applicant appeared in person. The second applicant did not appear. The Minister was represented by Mr O’Shannessey, solicitor.
The Court confirmed that the first applicant received the Court Book and the Minister’s written submissions.
APPLICANTS’ SUBMISSIONS
Noting that the first applicant was unrepresented, the Court gave the first applicant an opportunity to elaborate on, and further explain, his grounds of review and to inform the Court of the basis on which the Tribunal made any error.
To assist the first applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Decision.
It was also explained that this Court cannot review the merits of the Decision or grant the visa that is sought. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in making the Decision.
The first applicant sought to rely on a two-page document titled ‘s116-Deciding whether to cancel’ which was marked for identification ‘A1’. The document set out the prescribed matters which the delegate must have regard to when considering cancelling a visa and the discretionary criteria designed to afford fairness to the visa applicant when considering cancellation. The first applicant sought to highlight the requirement that the Tribunal and the delegate should consider the legal consequences of cancellation and whether an applicant may be precluded from making a further application for a visa or may be liable to be detained or removed as an unlawful non-citizen.
The first applicant also submitted that the consequences of cancellation would have a profound effect on his family. The first applicant said that there would be financial and emotional hardship for his dependent wife and children if the visa was cancelled and distress suffered by his now two school aged children who were both born and educated in Australia. They would suffer considerably if required to adjust to a new life in Pakistan.
The first applicant also referred to other facts that he considered important to the application for judicial review. They were:
·That at the time of the hearing before the Tribunal he was still seeking a new employer nomination and needed further time to do so;
·He asked the Tribunal to adjourn the hearing to allow him to secure employment and a new nomination. The Tribunal refused his request;
·He had no work rights for many years because his sponsor was barred from sponsoring employees for 457 visas. He had been duped by that employer but nevertheless survived without employment rights until the judgment of Judge Riley, after which he was given a bridging visa with work rights. This should have been given more weight by the Tribunal in the Decision. The lack of work rights also meant that his qualifications and experience as a Cook were compromised and this made it difficult for him to find suitable employment and a sponsor employer;
·His former migration agent gave him incorrect advice at the time of him seeking an employer sponsored category 457 visa;
·He should have been permitted by the Tribunal and the Department to have applied for a new category 482 visa because category 457 visas no longer exist; and
·If the visa is cancelled, he will be precluded from applying for any further category of visa for a period of three years.
The first applicant was otherwise unable to expand on the grounds of review in the application for judicial review or make any further submissions on the application of the decision in Lam v Minister for Immigration and Border Protection [2019] HCATrans 43 (Lam) referred to in the grounds of review.
MINISTER’S SUBMISSIONS
The solicitor for the Minister relied on the outline of written submissions filed with the Court and dated 3 June 2025.
It was submitted on behalf of the Minister that the Tribunal did consider the period of unemployment when considering the discretionary criteria available to it as decision-maker. The Tribunal found in the Decision that the first applicant had not worked as a cook for five and a half years and had not been the subject of an approved nomination in that time. Therefore, the Tribunal concluded that the purpose of the first applicant’s stay in Australia was no longer viable. There was nothing ‘unreasonable’ in the Tribunal giving weight to the first applicant’s choice to stay in Australia after his visa was cancelled when considering the issue of hardship, including hardship to his family. When the Decision is read as a whole and in context, there is no discernible error disclosed.
In relation to the request for an adjournment, the Tribunal did consider the first applicant’s request but concluded that because he had no approval from a nominated employer, there was nothing to suggest and no credible evidence to suggest that the applicant had genuine prospects of obtaining a sponsor in the immediate future. Therefore, the decision to proceed to determine the application was not unreasonable. In Lam, Nettle J found that a delegate of the Minister acted unreasonably when refusing a request to delay a decision. His Honour found that the conduct of the delegate in the circumstances of that case had a degree of arbitrariness that was unreasonable. That is not what occurred in this case. The Tribunal’s refusal of the request to further delay was based on rational considerations and the absence of evidence of any genuine prospects of obtaining a substitute employer within a reasonable time. It was highly unlikely that the first applicant would obtain a substitute as he had failed to do so in the past (see also Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] per Wigney J (Pandey)).
Ground one of the grounds of review was not established and should be rejected.
In relation to ground two, the particulars in support of this ground could not be sustained on the evidence. The Tribunal was entitled to consider that the first applicant had not worked as a cook and that this was the purpose of the applicant’s initial stay and application for the visa. This was a matter specifically referred to in the PAM3 Guidelines. Further, the Tribunal did give weight to and consider the evidence of hardship presented by the first applicant (CB 250 [24] and 251-2 [28]). There was no other evidence advanced by the applicants to support the claims for hardship. To the extent that the applicants seek to complain about the weight given to the evidence by the Tribunal, the applicants seek to engage in impermissible merits review of the Decision.
Finally, there was no error by the Tribunal in failing to consider a ‘three-year exclusion period’ because the exclusion period did not apply. The Minister submitted that the exclusion period is to be found in Sch 4 of the Migration Regulations1994 (Cth) (Regulations) reg 4013 (PIC 4013) but that did not apply to cancellation of the first applicant’s visa.
Because the first applicant was self-represented the Court asked the solicitor for the Minister to prepare a further outline of submissions on this point to explain why PIC 4013 did not apply and why the Tribunal was not required to consider it as a relevant consideration. Mr O’Shannessy filed and served a supplementary outline of submissions on 20 June 2025 which addressed this issue and explained the operation of the Regulations and why they did not apply to the circumstances of this case.
The Minister submitted that the application for judicial review should be dismissed with costs.
REPLY
In reply, the first applicant repeated that his position as an eligible employee had been prejudiced by the lack of work rights, the Tribunal should have delayed making a decision so that he could obtain a new sponsor, his family and children would be distressed by the cancellation of the visa and they would not adjust well to relocation in Pakistan.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, at [17] Allsop CJ, Besanko and O’Callaghan JJ described the role of a Court exercising judicial review as follows:
[17]…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.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2024) 280 CLR 321; [2024] HCA 12, the Court said at [3]:
[3] …Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
In this application, the issue to be determined is whether the Tribunal erred in exercising the discretion not to cancel the first applicant’s visa. There is no issue that a prescribed ground for cancellation under s 116(1)(g) of the Act was present. That was the ground in reg 2.43(1)(l)(iv) of the Regulations, that the sponsorship to the first applicant’s labour hire agreement had been cancelled under s 140M of the Act. Therefore, the Tribunal was correct to find that the grounds for cancellation of the visa exist (CB 249 [19]). The Tribunal was then required to consider as a matter of discretion whether the visa should be cancelled.
The discretion under s 116 of the Act is broad. However, the law imposes certain limitations. For example, the Minister and the Tribunal as decision-makers must not act arbitrarily, capriciously or unreasonably (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40, [1986] HCA 40 at [15] per Mason J; NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [6] per Allsop CJ and Katzman J).
In the grounds of review, the applicants say that the exercise of the discretion by the Tribunal was unreasonable by taking into account irrelevant matters such as:
·The length of the first applicant’s unemployment since cancellation;
·The first applicant’s choice to stay in Australia for almost four years since cancellation;
·The absence of a suitable employer sponsor; and
·The purpose of the first applicant’s stay in Australia under the visa (i.e. to work as a cook).
The applicants also say the Decision was unreasonable because the Tribunal failed to take into account relevant matters such as:
·The hardship that would be caused to the first applicant, his wife and children;
·The absence of work rights for a significant period of the first applicant’s stay before and after cancellation which meant that it was impossible to find a suitable sponsor;
·The decision of the High Court in Lam which the applicants say should have been applied to grant the first applicant a further adjournment to permit him to obtain a new sponsor;
·The ‘lack of correct advice’ from the first applicant’s then migration agent;
·The fact that the first applicant’s unemployment was due to no fault of his own; and
·The three-year exclusion period.
In Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li), French CJ said at [30]:
[30] The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence."
Each of the matters identified by the first applicant in the grounds of review and his oral submissions are no more than disagreement with the Decision or complaint about the weight given to the evidence by the Tribunal. That does not establish jurisdictional error.
In the Decision, the Tribunal did consider the purpose of the grant of the visa, the circumstances surrounding the first applicant’s stay in Australia under the visa and following cancellation of it, his unemployment as a cook, the cause of that unemployment, the duration of his unemployment, his alternative means of employment (as a taxi driver and cleaner) and the hardship that may be suffered by the first applicant and his family due to cancellation. The Tribunal also considered the first applicant’s request for more time to seek a new sponsor but found on balance that further time was unlikely to result in an appropriate and approved sponsor.
The Tribunal did not consider as relevant to the exercise of the discretion the ‘lack of correct advice’ from the first applicant’s migration agent as relevant to the exercise of because there was no evidence of negligence by the first applicant’s former agent before the Tribunal and no evidence produced to this Court that was relevant to the discretion to cancel that the Tribunal failed to consider.
The Tribunal did consider the first applicant’s unemployment as a cook was ‘through no fault of his own’ and the hardship that may be caused (CB 250 [24], [25]). It gave little weight to that hardship, giving more weight to the other discretionary matters it considered. The weight to be given to the evidence is a matter for the Tribunal and not for this Court (see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24] per Kiefel CJ, Keane, Gordon and Steward JJ; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J). The Tribunal was not unreasonable in failing to consider the hardship that would be suffered by the first applicant and his family but found that other factors were more compelling when deciding not to exercise the discretion.
The Tribunal did not unreasonably or irrationally refuse to grant the first applicant a further extension to obtain a suitable employer sponsor. The Decision in Lam was not applicable to the applicant’s circumstances. Lam was a case where the applicant was awaiting a ‘skills assessment’ for a subclass 485 visa. The assessment was under review by the assessment authority and a decision likely to be provided within thirty days. Nevertheless, the Tribunal made a decision refusing to grant a visa. Justice Nettle found that to be an unreasonable decision in the circumstances. Here, the first decision of the Tribunal affirming the decision to cancel was remitted following judicial review by Judge Riley because there was a pending application before the Minister by a nominated sponsor for the position of a cook. It was held that the Tribunal acted unreasonably in affirming the decision to cancel in those circumstances and should have granted further time before making a decision (i.e. consistent with Lam). However, that nomination was unsuccessful and never eventuated. By the time of the Decision, the first applicant still did not have a sponsor and a further eighteen months had passed with no new employer known or likely and it was five and a half years since the first applicant last worked as a cook. The Tribunal did not err in electing to make a decision in those circumstances. The principles relating to unreasonableness in the context of a decision by the Tribunal to refuse an adjournment were considered by the High Court in Li and in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). Those principles were summarised by Wigney J in Pandey at [41] as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Applying those principles and the stringent requirements required, it was open to the Tribunal to decline the first applicant’s request for more time and to proceed to make a decision on the review. The Tribunal did disclose an evident, transparent and intelligible justification for the refusal to grant an adjournment and so too in relation to the exercise of the discretion affirming the decision to cancel.
The Tribunal did not unreasonably fail to consider the ‘three-year exclusion period’ for the reasons explained in the Minister’s further written submissions dated 20 June 2025. There was no mandatory legal consequence that excluded the first applicant from applying for another visa for a three-year period. PIC 4013 refers to discretion criteria that may be considered if an applicant applies for another category of visa listed in Pt 2 of Sch 4 of the Regulations within a three-year period of cancellation. The visa was not listed in that part of the Regulations and the first applicant was not affected by a risk factor that meant that the criteria applied. Therefore the exclusion period did not apply to cancellation of this category of visa.
When considered as a whole, the Decision was not unreasonable and there was no failure to consider relevant matters or consideration of irrelevant matters in reaching the conclusion that the discretion should not be exercised.
Bearing in mind that the first applicant was self-represented before this Court and the second applicant did not appear, the Court has also remained alert to the possibility of jurisdictional error for some other reason not identified in the Decision. That includes whether the Tribunal gave due consideration to the bests interests of the first applicant’s children (see Nweke v Minister for Immigration and Citizenship [2012] FCA 266 at [10], [17]-[18] per Jagot J: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 at [26] and [39] per Mason CJ and Deane J and cf Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 at [22]-[23] and [25] per Dowsett, Pagone and Burley JJ and Snedden v Minister for Justicefor the Commonwealth of Australia [2014] FCAFC 156 at [147] per Middleton and Wigney JJ). The Tribunal did give due consideration to the hardship that may be suffered by the first applicant’s children should they be required to return with their mother and father to Pakistan including that the first applicant’s evidence that he can work in his father’s retail business (CB 250 [24]). There was no other evidence presented by the first applicant to the Tribunal to establish or suggest other hardship or that cancellation would clearly not be in the best interests of the first and second applicants’ children. Therefore, there was no failure to consider this aspect of the discretion. No other possible error is apparent from the reasoning of the Tribunal disclosed in the Decision.
The application for judicial review filed 3 July 2019 is dismissed.
OTHER MATTERS
The Minister sought an order that the name of the first respondent be amended to ‘Minister for Immigration and Citizenship’, which is the current Ministerial title which changed on 13 May 2025. An order will be made amending the name of the first respondent and the title to the proceeding.
COSTS
Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for judicial review in the sum of $5,000.00 which is less than the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth). The sum of $5,000.00 is fair and reasonable in the circumstances and will be ordered to be paid by the first and second applicants.
ORDERS
The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
The application for judicial review filed 3 July 2019 be dismissed.
The first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application for review fixed in the sum of $5,000.00.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 30 July 2025
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