Shao v Minister for Immigration and Multicultural and Indigenous Affairs

In the Federal Court of Australia, Shao, the applicant, brought proceedings against the Minister for Immigration and Multicultural and Indigenous Affairs, the respondent. The dispute centred around the validity of a decision made by the respondent's delegate on 30 August 2005, which purported to cancel the applicant's Student (Temporary) (Class TU) visa under section 116 of the Migration Act 1958. The applicant contended that the delegate lacked jurisdiction to make this decision as, at the time of the decision, the applicant did not hold the visa. This contention was based on the argument that the applicant's visa had already been cancelled under section 137J of the Act on 8 July 2005, and thus, the delegate had no visa to cancel.

The court was required to determine whether the delegate of the Minister had the jurisdiction to make the decision to cancel the visa on 30 August 2005, and if not, whether the decision was void and of no effect. The applicant argued that by the time of the decision, the visa had already been cancelled by operation of section 137J, and therefore, the delegate did not have a visa to cancel. The court examined the provisions of sections 116, 82, and 137J of the Act to ascertain the legal framework governing the cancellation of the visa and the jurisdictional requirements for such a decision.

The court found that the visa had indeed been cancelled by operation of section 137J on 8 July 2005, prior to the decision of 30 August 2005. As the visa was no longer in effect at the time of the decision, the delegate did not have jurisdiction to cancel it. Consequently, the court held that the decision made by the delegate on 30 August 2005 was invalid as it was made without jurisdiction. However, the court dismissed the application, finding that the applicant had not demonstrated sufficient grounds for the relief sought. The court ordered that the application be dismissed and that the applicant pay the respondent's costs.