Sharma v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 812

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sharma v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 812

File number(s):

MLG 2033 of 2019

Judgment of:

JUDGE FARY

Date of judgment:

2 June 2025

Catchwords:

MIGRATION - application for judicial review – student (Temporary) (Class TU) (Subclass 573) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant did not comply with condition 8202(2)(a) – whether Tribunal erred by failing to provide genuine consideration to applicant’s personal circumstances – found no jurisdictional error on behalf of the Tribunal – application dismissed.

Legislation:

Australian Constitution s75(v)

Migration Act 1958 (Cth) s 116, s 140, s 474, s 476

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1 Pt 2 Sch 2

Migration Legislation Amendment (2016 Measure No. 1) Regulation 2016 (Cth) Item 32 of Sch 4

Migration Regulations 1994 (Cth) cl 500.211 – cl 500.218, Condition 8202(2)(a)

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

El Ess and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43

Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172

Gupta v Minister for Immigration & Border Protection (2017) 255 FCR 486

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152

Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 2

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506

MZARG v Minister for Immigration and Border Protection [2018] FCA 624

Nathanson v Minister for Home Affairs (2022) 276 CLR 80

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

Oshlack v Richmond River Council (1998) 193 CLR 72

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Twomey v Que 5 Pty Ltd [2023] FCA 1155

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

103

Date of last submission/s:

29 May 2025

Date of hearing:

29 May 2025

Place:

Melbourne

Applicant:

In person

Solicitor for the First Respondent:

Ms Birman, Australian Government Solicitor

Solicitor for the Second Respondent:

Submitting notice, save as to costs

ORDERS

MLG 2033 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

VIVEK SHARMA

Applicant

AND:

MINISTER OF IMMIGRATION AND CITZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE FARY
DATE OF ORDER:	2 JUNE 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2.The application be dismissed.

3.The applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $6,000.

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 Fary

INTRODUCTION

1. By an Application filed in this Court on 27 June 2019 (Application), the Applicant seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 3 June 2019 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).

2. In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Student (Temporary) (Class TU) Student (Subclass 573) visa (Visa) on the basis that the Applicant had not complied with condition 8202(2)(a) (8202(2)(a)) as set out in Schedule 8 of the Migration Regulations 1994 (Cth) (Regulations).

3. The hearing of the Application took place at the Melbourne Registry of the Court on 29 May 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

   [1] Orders made by Judge Fary on 29 May 2025, Order 1.

   ISSUE IN DISPUTE

4. The issue in dispute is whether the Tribunal fell into jurisdictional error in its decision (Tribunal Decision) and failed to take into account all relevant information and evidence provided by the Applicant.

   BACKGROUND

5. The Court has before it a Court Book with 268 pages filed by the Minister on 14 February 2022 (Court Book). The Court has reviewed the Court Book in detail. The Outline of the Minister’s Submissions, filed 15 May 2025 (Minister’s Submissions) accurately summarise the background to this matter at [1] to [5]. The Court adopts those submissions with amendments as follows.

6. The Applicant is a citizen of India.

7. On 13 December 2013, the Applicant arrived in Australia.[2]

   [2] Court Book (CB) 180.

8. On 16 October 2013, the Applicant was granted the visa.[3]

   [3] CB 18.

9. On 1 February 2017, a delegate of the Minister sent the Applicant a Notice of Intention to Consider Cancellation (NOICC) of the visa under s 116 of the Act on the basis that the Applicant had not complied with condition 8202(2)(a). The Applicant had not been enrolled in a course of study since 8 April 2016.[4]

   [4] CB 18-22.

10. On 2 and 3 February 2017, the Applicant responded to the NOICC and stated that he “did’t [sic] breach my visa condition perpusely [sic]”.[5]

    [5] CB 23, 26.

11. On 10 February 2017, a delegate of the Minister cancelled the Visa (Delegate’s Decision).[6] The Delegate was satisfied that there was grounds for cancellation pursuant to s 116(1)(b) of the Migration Act and his failure to comply with condition 8202(2)(a). The Delegate was further satisfied that the Visa should be cancelled in exercise of the discretionary power under s 116(1)(b) on the basis that the cancellation outweighed the grounds for not cancelling.[7]

    [6] CB 31-43.

    [7] CB 39, 42.

12. On 17 February 2017, the Applicant applied to the Tribunal for review.[8]

    [8] CB 44-45.

13. On 20 February 2017, the Tribunal acknowledged receipt of the Applicant’s Application for review.[9]

    [9] CB 46-49.

14. On 19 March 2019, the Tribunal wrote to the Applicant inviting him to attend a hearing on 15 May 2019.[10]

    [10] CB 50-53.

15. On 26 March 2019, the Applicant’s migration agent (Migration Agent) wrote to the Tribunal submitting an appointment of representation form and requested that the hearing be moved to Melbourne as the Applicant had relocated.[11]

    [11] CB 54-56.

16. On 28 March 2019, the Tribunal wrote to the Applicant’s Migration Agent granting the request for the Tribunal hearing to be conducted in Melbourne.[12]

    [12] 57-60.

17. On 5 April 2019, the Applicant’s Migration Agent requested access to all documents held by the Department and the Tribunal in relation to the Applicant’s Visa Application.[13] On this date, the Tribunal wrote to the Applicant’s Migration Agent granting access to the material.[14]

    [13] CB 61.

    [14] CB 63-64.

18. On 5 April 2019, the Applicant’s Migration Agent emailed a scanned response to the hearing notice sent by the Tribunal requesting a Punjabi interpreter.[15]

    [15] CB 65-68.

19. On 8 April 2019 and 1 May 2019, the Applicant’s Migration Agent sent the Tribunal change of contact detail forms.[16]

    [16] CB 69-75.

20. On 8 May 2019, the Applicant’s Migration Agent wrote to the Tribunal attaching written submissions.[17]

    [17] CB 76-190.

21. On 9 May 2019, the Applicant’s Migration Agent wrote to the Tribunal attaching a signed statement by Ajaydeep Uppal in support of the Application.[18]

    [18] CB 191-193.

22. On 13 May 2019, the Applicant’s Migration Agent wrote to the Tribunal attaching amendments to the written submissions sent on 8 May 2019.[19]

    [19] CB 194-200.

23. On 15 May 2019, the Applicant’s Migration Agent emailed the Tribunal a letter issued by ACOT confirming the Applicant’s current enrolment status and progress.[20]

    [20] CB 212-217.

24. On 15 May 2019, the Applicant attended the Tribunal hearing with the assistance of a Punjabi interpreter, Migration Agent, witness and support person.[21]

    [21] CB 218.

25. On 16 May 2019, the Applicant’s Migration Agent wrote to the Tribunal requesting a copy of the hearing recording.[22]

    [22] CB 221-223.

26. On 21 May 2019, the Tribunal sent an email to Front Cooking School asking whether the Applicant gave reasons for seeking a release from his studies.[23]

    [23] CB 224-226.

27. On 21 May 2019, the Tribunal sent an email to Holmesglen Institute asking for the reasons provided by the Applicant for discontinuing his enrolment.[24]

    [24] CB 226-228.

28. On 22 May 2019, the Applicant’s Migration Agent wrote to the Tribunal attaching further submissions.[25]

    [25] CB 230-240.

29. On 24 May 2019, the Tribunal sent a further email to Front Cooking School.[26]

    [26] CB 243-244.

30. On 29 May 2019, the Tribunal received an email from Front Cooking School with reasons for the Applicant’s cancellation of his studies.[27]

    [27] CB 245-248.

31. On 3 June 2019, the Tribunal notified the Applicant of its decision to uphold the Delegate’s Decision.

    TRIBUNAL’S DECISION

32. The Tribunal’s Decision is at 252 to 262 of the Court Book.

33. The Tribunal first outlined the background to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [3] to [6].

34. The Tribunal first asked the Applicant about his Certificate III in Commercial Cookery in which he was enrolled in at the beginning of 2016. The Tribunal noted the Applicant’s evidence that he was very upset after he broke up with his former partner, and as a result was unable to attend classes.[28] The Tribunal asked the Applicant as to why he did not take compassionate leave; however the Tribunal noted that the Applicant’s evidence was that during the period of April through to December 2016, he stayed at home and did nothing.[29]

    [28] CB 254.

    [29] CB 254.

35. The Tribunal noted that the Applicant said he was informed about his sister having breast cancer in December 2016, however, when questioned as to why he did not study between April 2016 and December 2016, the Applicant stated that his mind was not stable, and he could not concentrate.[30]

    [30] CB 254.

36. The Tribunal made note of the Applicant’s claims as to a compelling need to remain in Australia.[31] The Tribunal made reference to the Applicant having enrolled in a Certificate III course on 15 April 2019 and questioned the Applicant as to why he had not studied prior to that date.[32]

    [31] CB 255.

    [32] CB 255.

37. The Tribunal invited the Applicant to make submissions regarding the hardship that would result from his Visa being cancelled. The Tribunal noted the Applicant’s Representative’s submissions as to why the Applicant had been able to work but unable to study in the period between April to December 2016.[33]

    [33] CB 255.

38. The Tribunal accepted that the circumstances surrounding the Applicant’s sister’s illness may have affected his ability to study but not to the effect it prevented him from studying up to the present.[34]

    [34] CB 255.

39. The Tribunal noted that the Applicant’s Migration Agent then made submissions about the Applicant’s former fiancé having been pregnant, however, this information had not been mentioned prior to the earing.[35]

    [35] CB 255.

40. The Tribunal found that between April 2016 and February 2017, the Applicant had not been enrolled in a course of study and therefore failed to comply with condition 8202(2) of his Visa.[36]

    [36] CB 275.

41. The Tribunal recognised that the power to cancel the visa was a discretionary one and indicated that a Delegate of the Minister had regard to the circumstances of the case including matters raised by both the Applicant and in the Department’s Procedures Advice Manual 3 (PAM3). The Tribunal address these matters under the following subheadings:

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder had a compelling need to travel to or remain in Australia

42. The Tribunal noted the Applicant’s evidence that his mother and himself wanted him to complete his Certificate and Diploma courses in Cookery and Hospitality to obtain qualifications to open a restaurant.[37]

    [37] CB 257.

43. The Tribunal placed some weight on the Applicant being currently enrolled to study, which if completed would be of value to him in the future. However, on the balance of the Applicant’s claims, these weighed against him and did not demonstrate a convincing reason for needing to stay.[38]

    [38] CB 257.

    The extent of compliance with visa conditions

44. The Tribunal noted that the Applicant’s failure to maintain enrolment and engage in a course of study was a fundamental breach of the visa and weighed against him.[39]

    [39] CB 257.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

45. The Tribunal noted the Applicant’s claims that he would suffer hardship, including that he wanted to make his mother happy, to open an Indian fusion restaurant in his home country and because his father and sister have passed away.[40]

    [40] CB 258.

46. The Tribunal gave some weight to the Applicant in this regard.[41]

    [41] CB 258.

    Circumstances in which the grounds of cancellation arose

47. The Tribunal did not accept the Applicant’s explanations for discontinuing his studies and accordingly, the Tribunal concluded that the circumstances in which the cancellation arose weighed against the Applicant.[42]

    [42] CB 258-259.

    Past and present behaviour of the visa holder towards the Department

48. The Tribunal noted that there was no evidence to indicate that the Applicant had not cooperated with the Department, and this gave some weight in favour of the Applicant.[43]

    [43] CB 259.

    Whether there would be consequential cancellations under s 140

49. The Tribunal concluded that there was no evidence before it that there would be any consequential cancellations under s 140 of the Act.[44]

    [44] CB 259.

    Mandatory legal consequences

50. The Tribunal noted that cancellation of the Visa meant the Applicant could become an unlawful non-citizen liable to removal, noting the operation of s 48 of the Act and PIC 4013. As a result, the Tribunal concluded that these were the intended consequences of the legislation and did not weigh in favour of the Applicant.[45]

    [45] CB 260.

    International obligations

51. The Tribunal noted that during the hearing the Applicant stated he had no issues in his home country, and cancellation of the Applicant’s visa would not result in Australia breaching any international obligations.[46]

    [46] CB 260.

    If the visa is a permanent visa, whether the applicant had strong family ties

52. The Tribunal noted the Visa was not permanent.[47]

    [47] CB 260.

    Other relevant matters

53. The Tribunal noted the Applicant’s alleged mental impairment and concluded that the Applicant had over-stated his level of mental impairment.[48]

    [48] CB 260.

54. The Tribunal noted that it considered the Applicant’s circumstances both individually and cumulatively. The length of time the Applicant spent in Australia having breached his visa conditions was significant and as a result the Tribunal affirmed the decision under review.[49]

    [49] CB 261.

    PROCEEDINGS IN THIS COURT

55. The Application was filed in this Court on 27 June 2019, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.

56. On 10 February 2022, Orders were made by Registrar Van Der Westhuizen of this Court for the Applicant to file: written submissions, any Amended Application with proper particulars and any additional evidence. For the Respondent to file: a copy of the court book, written submission and any additional evidence.

57. On 26 February 2025, Orders were made by Registrar Chapman of this Court for the First Respondent’s name to be amended to the Minister for Immigration and Multicultural Affairs. For the Second Respondent’s name to be amended to Administrative Review Tribunal.  For the Applicant to file: written submissions, any Amended Application with proper particulars and any additional evidence. For the Respondent to file: written submissions and any additional evidence. The Court noted that the Applicant does not require an interpreter and retains a copy of the Court Book.

58. This matter was heard on 29 May 2025 at a Final Hearing before me. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.

59. The Applicant relied upon the following documents:

    (a)The Application filed 27 June 2019; and

    (b)The Affidavit of the Applicant sworn and filed 27 June 2019 (Applicant’s Affidavit).

60. The Minister relied upon:

    (a)The Response, filed 17 July 2019;

    (b)The Minister’s Outline of Submissions, filed 15 May 2025;

    (c)Affidavit of Jade Birman annexing PAM3, filed 27 May 2025;

    (d)The Minister’s Supplementary Submissions, sent to my Chambers on 29 May 2025; and

    (e)List of Authorities, sent to my Chambers on 29 May 2025.

61. Both parties relied on the Court Book.

62. The Application contains two (2) grounds of review (Grounds of Review):

    1.    Administrative Appeals Tribunal was obliged to

    •But failed to consider all relevant

    •Information regarding the case. (Ground 1).

    2.    The Administrative Appeals Tribunal misjudged the extreme hardship that would occur on the appellant due to tribunal’s decision. (Ground 2).

    (Words in bold added, otherwise as written).

    APPLICANT’S SUBMISSIONS

63. The Applicant did not file written submissions.

64. The Applicant made oral submissions during the Hearing. He explained that the reasons why he did not go to college was a result of family issues. He said that he was not proud of decisions he had made in the past. The Applicant stated that he did not have a father and was raised by a single mother. He referred to the breakup with his girlfriend, his sister’s diagnosis with breast cancer and her passing, and his mother’s wish that he complete his studies. The Applicant stated that he wanted a second chance. The Applicant talked about the death of his mother (which occurred after the Tribunal’s Decision). He said that it was his mother’s last wish that he completes his studies. The Applicant later mentioned that this was why she had spent her life savings on his studies in Australia.

65. The Applicant submitted that the Tribunal only focussed on one thing during the Hearing, namely his failure to complete the course. He said that he had explained the reasons for this. The Applicant stated that his father passed away when he was 7, he referred to his sister’s diagnosis with cancer and her passing. He said that he couldn’t concentrate on anything. Another family member told him that his sister had died. The Applicant further submitted that he couldn’t really handle it. He said that he wouldn’t say that the Tribunal had made a mistake. He said that he had filed the appeal so that he could get another chance to study.

    RESPONDENT’S SUBMISSIONS

66. The Minister submits that the Application fails to establish any jurisdictional error and must be dismissed with costs fixed in the amount of $6,000.

    Ground 1

67. Ground 1 contends that the Tribunal failed to consider all relevant information, and the Minister submits that the Tribunal gave careful consideration to all claims and evidence before it.

1. The Tribunal considered:

   (a)the Applicant’s reasons for discontinuing his Certificate III in Commercial Cookery;

   (b)the Applicant’s claims in relation to his mental state;

   (c)the Applicant’s Representative’s submissions as to why the Applicant had been able to engage in work but unable to study;

   (d)the Applicant’s current enrolment and his future plans with respect to study and employment in Australia;

   (e)the letter of support provided by the Applicant’s friend; and

   (f)the hardship the Applicant alleged he would accrue if his Visa were to be cancelled.

2. The Minister submits that this ground should be dismissed.

   Ground 2

3. Ground 2 alleges that the Tribunal misjudged the extreme hardship that the Applicant would accrue if the Visa Application were to be rejected.

4. The Minister submits that the Applicant seeks to engage in impermissible review and for this reason Ground 2 should be dismissed.

   PRINCIPLES

   General

5. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.

6. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[50]

   [50] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

7. “The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[51] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[52]

   [51] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].

   [52] Yusuf at [82].

8. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[53] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error 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”.[54] Different kinds of error may overlap.[55] The categories are not closed.[56]

   [53] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

   [54] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].

   [55] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82].

   [56] LPDT at [3].

9. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[57] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[58] It has been described as an “undemanding” standard.[59]

   [57] LPDT at [7].

   [58] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

   [59] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).

   Student Visas

10. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.

11. The criteria that the Applicant was required to satisfy for the grant of a Student visa (Subclass 573) are set out in cl 573.6 to 573.617 in Schedule 2 of the Regulations.[60]

    [60] See Regulation 2.05(1).

12. At the time of the grant of the Visa (16 October 2013), cl 573.6 provided that a subclass 573 visa was subject to condition 8202.

13. Condition 8202 at the time of the grant of the Visa provided:

    1.    The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    2.    A holder meets the requirements of this subclause if:

    a.the holder is enrolled in a registered course; or

    b.in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full-time course of study or training.

    3.    A holder meets the requirements of this subclause if neither of the following applies:

    a.   the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    i.section 19 of the Education Services for Overseas Students Act 2000; and

    ii.standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    b.   the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    i.section 19 of the Education Services for Overseas Students Act 2000; and

    ii.standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

    4.    In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.

14. The subclass 573 visa was abolished by Item 32 of schedule 4 of the Migration Legislation Amendment (2016 Measure No. 1) Regulation 2016 (Cth) (Amending Regulation). However, reg 5404(1) of schedule 5 of the Amending Regulation provided that the amendments made by Item 32 of schedule 4 apply in relation to an application for a visa made on or after 1 July 2016.

15. While the Tribunal’s decision was made on 3 June 2019, which is after the Amending Regulation, given that the Visa was granted on 16 October 2013, the Amending Regulation did not apply to the Visa, and the Tribunal was correct to approach the matter having regard to Schedules 2 and 8 of the Regulations as they were at the time the Visa was granted.

    Cancellation of Visa

16. Section 116(1)(b) of the Migration Act provided (at the time of the Tribunal’s Decision) that the Minister may cancel a visa if he or she is satisfied that its holder has not complied with a conditions of the visa. Section 116(2) provided that a Minister is not to cancel a visa under s 116(1) if there are prescribed circumstances in which a visa is not to be cancelled. Section 116(3) provided that if the Minister may cancel a visa under s 116(1) the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

    CONSIDERATION

    Ground 1

17. Ground 1 is that:

    Administrative Appeals Tribunal was obliged to but failed to consider all relevant information regarding the case.

18. There was no dispute before this Court or the Tribunal that:

    (a)Condition 8202(2)(a) of the Regulations was breached at the time of the decision of the Delegate and the Hearing before the Tribunal; and

    (b)The Minister’s discretion to cancel the Visa under s 116(1) of the Migration Act was enlivened.

19. Accordingly, the jurisdictional fact which is the precondition for the exercise of the discretion in s 116(1) of the Migration Act was satisfied in the present case.[61]

    [61] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [131]; Djokovic at [21].

20. The Department’s PAM3, General visa cancellation powers provide for the matters which delegates of the Minister and the Tribunal should take into account, if relevant, in deciding whether to cancel a visa in exercise of the discretionary power in s 116(1)(b) of the Migration Act.

21. In El Ess and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43, Gray J stated (at [45]):

    In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230; (2000) 61 ALD 641at [28]-[29] and Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 at [15]-[16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.

    (emphasis added)

22. The Migration Act and Regulations do not set out any mandatory considerations that the decision maker must consider in the exercise of the discretion to cancel a visa. While the discretion is broad it must not be exercised unreasonably.[62]

    [62] Gupta v Minister for Immigration & Border Protection (2017) 255 FCR 486 per Gilmour, Logan and Mortimer JJ at [53]-[54].

23. In Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 2 at [15a-e], Mason J set out the legal principles which apply on judicial review in relation to failing to take into account relevant considerations as follows:

    The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision…

    What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.

    Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision... A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision...

    The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228). It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, at pp.230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it… However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied... But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice… So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

    The principles stated above apply to an administrative decision made by a Minister of the Crown… However, in conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from the subject matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion.

    (emphasis added)

24. In Li, French CJ stated (at [76]):

    As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

    (emphasis added) (footnotes omitted)

25. In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, Robertson J held (at [77] and [111]) that the question of whether a failure to consider evidence gives rise to jurisdictional error:

    … is a case specific inquiry and it is not one which should be analysed by reference to fixed categories or formulas, to the effect that a decision within a category or formula is always or is never affected by jurisdictional error…the fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error.

    (emphasis added)

26. Ground 1 is unparticularised, which in the circumstances of a particular case, may be “a sufficient basis to dismiss it”.[63] In circumstances where the Applicant is unrepresented, I have taken the additional step of considering whether (arguable) jurisdictional error can be discerned from the Tribunal’s Decision. I also asked the Applicant to expand upon Ground 1 in oral submissions. In his oral submissions, the Applicant principally focussed on two matters: his sister’s cancer diagnosis and the breakdown of his relationship with his girlfriend.

    [63] NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]. See also Twomey v Que 5 Pty Ltd [2023] FCA 1155 at [25]; MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25]; DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [4]‑[8]; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

27. I am not satisfied that the Tribunal “failed to consider all relevant information regarding the case” as alleged in Ground 1. In the course of the Tribunal’s Decision, it referred to the Applicant’s original purpose in travelling to and staying in Australia (at [27]); the Applicant’s submissions concerning any compelling need to remain in Australia (at [28]); the Applicant’s future intentions with regard to opening a restaurant (at [28]); the Applicant’s family circumstances (at [29]); the value of study to the Applicant’s future (at [29]); extent of compliance with visa conditions (at [30]); hardship consequent upon the cancellation of the visa (at [31] and [32]); the circumstances in which the cancellation arose (at [34] to [39]); past and present behaviour towards the Department (at [40]); legal consequences of cancellation (at [42]); international obligations (at [43]); and any other relevant matters (at [44]).

28. The two matters that the Applicant emphasised in his oral submissions namely his sister’s cancer and the breakdown of his relationship with his girlfriend were the subject of extensive consideration by the Tribunal, particularly at [34] (see also [9], [10] and [11]).

29. I am not satisfied that jurisdictional error is made out by reference to Ground 1.

    Ground 2

30. Ground 2 is that:

    The Administrative Appeals Tribunal misjudged the extreme hardship that would occur on the appellant due to tribunal’s decision.

31. Ground 2 concerns the question of whether the Tribunal erred in its findings in relation to hardship consequent upon the cancellation of the Applicant’s visa.

32. The Tribunal considered the hardship to the Applicant consequent upon the cancellation of the visa at [31] and [32]. I can discern no error in the approach of the Tribunal on the question of hardship. For example, at [32], the Tribunal stated:

    The applicant claimed he would suffer hardship if his visa is cancelled because he wants to make his mother happy and it feels like he has nothing left in his life. The representative stated the applicant will suffer financial hardship if his visa is cancelled because his father and sister have passed away and his plans to open a restaurant are all he and his mother have. The applicant’s representative had also addressed the degree of hardship that may be caused in the written submission of 8 May 2019 prior to the hearing. It was stated the applicant would be unable to continue his studies in Australia; being able to complete his courses will put him in a better position to open an Indian fusion restaurant in his home country; and he is responsible for caring for his widowed mother. The Tribunal acknowledges the cancellation of the visa would mean that the applicant would not be able to continue his studies in Australia and that this would cause him a degree of hardship.

1. The complaint in Ground 2 would appear to go to questions of weight, which, subject to requirements of reasonableness and rationality, is a matter for the Tribunal.[64] It is trite to recite that the court is not permitted to engage in merits review.[65] I am not satisfied that the Tribunal’s reasoning, fact finding or conclusion were unreasonable[66] or otherwise flawed.

   [64] SJSS at [33].

   [65] Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]–[54].

   [66] SZMDS at [130].

2. I am not satisfied that jurisdictional error is made out by reference to Ground 2.

   CONCLUSION

3. As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[67] the Application for review must be dismissed.

   [67] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [113].

   Costs

4. At the end of each party’s submissions, I invited them to make submissions as to costs in the event that that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minster sought costs in the sum of $6,000 being an amount that is less than the scale amount.[68] I am satisfied that costs ought to follow the event,[69] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[70]

   [68] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.

   [69] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.

   [70] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.

I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

Associate:

Dated:       2 June 2025