Singh v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1178
•30 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1178
File number(s): MLG 2293 of 2019 Judgment of: JUDGE FARY Date of judgment: 30 July 2025 Catchwords: MIGRATION - application for judicial review – student (Temporary) (Class TU) (Subclass 500) 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 47(1), s 65(1), s 116, s 359A, s 360, s 425, 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 Regulations 1994 (Cth) r 2.55(3), cn 8202(2)(a), cll 500.211 – cl 500.218
Cases cited: ABV16 v Minister for Immigration and Border Protection [2017] FCA 184
Cardenas v Minister for Immigration and Multicultural Affairs [2001] FCA 17
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
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
Minister for Immigration & Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of last submission/s: 24 July 2025 Date of hearing: 24 July 2025 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Mr Rossi, Mills Oakley Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 2293 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANKUR DEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
30 JULY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $5,450.
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
By way of Application filed on 18 July 2019, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 17 June 2019 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) to cancel the Applicant’s Student (Temporary) (Class TU) Student (Subclass 500) visa (Visa) under s 116(1)(b) of the Migration Act. The Visa was cancelled on the basis that the Applicant was not enrolled in a relevant course of study since 27 June 2017 and therefore was in breach of condition 8202(2)(a) of Schedule 8 of the Migration Regulations 1994 (Cth) (Regulations).
The hearing of the Application took place at the Melbourne Registry of the Court on 24 July 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 24 July 2025, Order 2.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant was enrolled in a relevant course of study.
BACKGROUND
The Applicant is a citizen of India.[2]
[2] Court Book (CB) 28.
On 22 November 2016, the Applicant was granted the Visa with condition 8202 attached.
On 22 February 2018, a Delegate of the Minister issued a Notice of Intention to Consider Cancellation (NOICC) form pursuant to s 116 of the Act.[3] The NOICC indicated that it appeared the Applicant had not been enrolled in a course of study since 27 June 2017, failing to comply with condition 8202 based on the Minister’s Provider Registration and International Student Management System (PRISM) records.[4] The NOICC invited the Applicant to respond to the letter within 5 working days upon receipt.[5] No response was received.[6]
[3] CB 6-10.
[4] CB 6-11.
[5] CB 8.
[6] CB 13.
On 1 May 2018, a Delegate of the Minister notified the Applicant that the Visa had been cancelled (Delegate’s Decision).[7]
[7] CB 13.
On 13 May 2018, the Applicant applied to the Tribunal for review and appointed a representative (Applicant’s Representative).[8]
[8] CB 25-29.
On 14 May 2018, the Tribunal wrote to the Applicant acknowledging receipt of the Application in respect to the Applicant’s Medical Treatment (Visitor) (Class UB) visa.[9] This appears to be a mistake on behalf of the Tribunal.
[9] CB 31.
On 28 May 2019, the Applicant was invited to attend a hearing before the Tribunal on 17 June 2019.[10]
[10] CB 40-41.
On 30 May 2019, the Applicant’s Representative wrote to the Tribunal attaching the hearing response, indicating that the Applicant would attend and did not intend to call any witnesses.[11] A statement of account belonging to the Applicant with a betting agency was also provided.[12]
[11] CB 50-52.
[12] CB 53-313.
On 17 June 2019, the Applicant’s Representative and Applicant attended the Tribunal hearing with the assistance of a Punjabi interpreter.[13] The Tribunal affirmed the decision under review and oral reasons were provided (Tribunal’s Decision).[14] On date same, the Applicant’s Representative wrote to the Tribunal requesting a written statement of decision and reasons.[15]
[13] CB 314.
[14] CB 316.
[15] CB 337.
On 8 July 2019, the Tribunal wrote to the Applicant providing written reasons for the Tribunal’s Decision dated 4 July 2019.[16]
[16] CB 340.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 342 to 346 of the Court Book.
The Tribunal identified the relevant issue as whether the Applicant, being the holder of the Visa, had breached condition 8202 and whether the Visa should accordingly remain cancelled pursuant to s 116 of the Migration Act.
The Tribunal had regard to the circumstances of the case, including matters raised by the Applicant and matters in the Department’s Procedures and Advice Manual (PAM3) and found that the Applicant was not enrolled in a registered course of study between 27 June 2017 to 1 May 2018 and was therefore in breach of the requirements of condition 8202(a) of the Regulations.
The Tribunal noted the Applicant’s evidence in relation to his gambling addiction, including a statement of account with a betting agency, and noted that by the time the Applicant was required to pay for his second semester fees “had used that money and wasted it on gambling”.[17] The Tribunal recognised the “tragic state of affairs” which led the Applicant to use money intended for his education for purposes outside of his course of study.[18] The Tribunal found that this was not a reasonable excuse for breaching the conditions of the Visa.
[17] CB 344.
[18] CB 345.
The Tribunal accepted the Applicant’s evidence that he had passed two out of the four units which had been paid for, and that this demonstrated some degree of compliance. However, the Tribunal went on to note that the Applicant had not produced evidence of his academic transcript in this respect.
The Tribunal considered the Applicant’s desire to remain in Australia to complete his education and found that the course would benefit him if he were to remain. The Tribunal accepted that the Applicant would be “hard pressed” and suffer familial consequences if he returned home without a visa or with his visa being cancelled. However, the Tribunal found that the Applicant’s breach of the conditions attached to his Visa was due to fault of his own.
The Tribunal affirmed the Delegate’s Decision under review as the Applicant failed to satisfy condition 8202 of the Regulations.[19]
[19] CB 347.
PROCEEDINGS IN THIS COURT
On 18 July 2019, the Application was filed in this Court, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 23 November 2022, Orders were made by Registrar Carney of this Court for the Applicant to file: any amended application, written submissions and any Supplementary Court Book. For the Respondent to file: written submissions and one hard copy of the Court Book no earlier than 8 weeks and no later than 6 weeks prior to the hearing.
On 27 November 2024, Orders were made by Registrar Foster 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. The Court noted that the Applicant advised that he has a new telephone number and physical address. The Court provided the Applicant with a Notice of Address for Service form. The Applicant has not retained the Court Book and the Minister’s legal representative undertook to provide the Applicant with a soft copy within 7 days of the Orders. Orders 5, 6 and 7 of the Orders made by Registrar Carney on 23 November 2022 continue to apply as to the filing of documents in advance of the final hearing.
This matter was heard on 24 July 2025 for a Final Hearing before me.
The Applicant relied upon the following documents:
(a)The Application filed 18 July 2019; and
(b)The Affidavit of the Applicant sworn and filed 18 July 2019 (Applicant’s Affidavit).
The Minister relied upon:
(a)The Response, filed 4 December 2024;
(b)The Minister’s Submissions filed 10 July 2025;
(c)Affidavit of Service of Andrew James Price filed 22 July 2025; and
(d)List of Authorities filed 24 July 2025.
Both parties relied on the Court Book.
The Application contains the following two grounds of review (Grounds of Review):
1. The decision of the Tribunal dated 4 July 2019 was an improper exercise of power conferred by the Migration Act 1958 and Migration Regulations 1994 in that it involved the exercise of a discretionary power without regard to the merits of the particular case. (Ground 1).
Particulars
a. There was no evidence or other material to justify the making of the decision as the decision was based on the existence of a particular fact and that fact did not exist.
b. Applying Cardenas v Minister for Immigration and Multicultural Affairs [2001] FCA 17 the power conferred by s 116(1)(a) was discretionary. On one reading of the Tribunal’s decision, it is clear the Tribunal failed to recognised that there was a discretion to be exercised.
c. The Second Respondent did not give consideration to the exercise by it of the discretion vested in it. There was no discussion in its reasons of whether, in all the circumstances placed before it, the Second Respondent might exercise its own discretion not to cancel the visa.
2. That decision of the Second Respondent (Tribunal) is affected by jurisdictional error on the basis that the Tribunal misconstrued and misapplied section 116 Migration Act 1958 (the Act). (Ground 2).
Particulars
a. The Tribunal failed to consider section 116(2) of the Migration Act 1958 where it provides the “Minister is not to cancel a visa under subsection (1)…if there exist prescribed circumstances in which a visa is not to be cancelled”
b. The Tribunal failed to put the Applicant on notice of the issues dispositive to its decision.
c. The Tribunal failed to afford the applicant procedural fairness as adequate particulars of the information upon which the decision not to revoke the cancellation was based were not provided to the applicant for his comment applying Noeung v Minister for Immigration and Multicultural and Indigeous Affairs [2002] FCA 1304.
d. A copy of the PRISMS report was not provided to the Applicant.
e. The Tribunal misconstrued section 116(1)(b) in finding ground of cancellation exists under the said section.
f. The breach of condition 8202 (if any) does not entail cancellation of visa pursuant to section 116 of the Act.
g. The Tribunal erred in not applying the facts when considering grounds of cancellation in section 116(1) of the Act.
(Words in bold added otherwise as written).
APPLICANT’S SUBMISSIONS
The Applicant did not file any written submissions.
In oral submissions, the Applicant stated that he came to Australia to do his Master’s degree, after doing a Bachelor’s degree in India. He said that he is a “very bright student” and upon coming to Australia, he fell into the “trap” of gambling and got “addicted”.
The Applicant further asserted that he had lost money gambling which took a toll on him both financially and mentally. He submitted that he wanted a “chance”, so that he could do something with his life. The Applicant expressed regret about the waste of time and money.
RESPONDENT’S SUBMISSIONS
The Minister submits that the Applicant fails to demonstrate any jurisdictional error in the Tribunal’s Decision and as such the Application ought to be dismissed with costs.
Ground 1
The Applicant alleges that the Tribunal failed to have proper regard to his circumstances and failed to exercise proper discretion.
The Minister submits that the Tribunal was cognisant of its discretionary power and assessed the Applicant’s evidence through the correct framework. The Tribunal appropriately identified the relevant issue as being whether the Applicant had breached condition 8202 of the Regulations and if so, whether the Visa should be cancelled. Moreover, the Tribunal was mindful that it should consider the Applicant’s circumstances, which included, without being restricted, matters raised by the Applicant during the hearing and matters identified in PAM3. The Tribunal’s findings were reasonably open to it on the evidence before it.
The Minister submits that Ground 1 is not made out.
Ground 2
The Minister submits that the Tribunal’s Decision was not affected by jurisdictional error and as such this ground cannot succeed.
Particular (a)
The Applicant alleges that the Tribunal failed to consider s 116(2) of the Migration Act which provides an exception to the power to cancel a visa under s116(1).
The Minister submits that this is misconceived as there are no prescribed circumstances in which the Minister was not to cancel the visa.
Particular (b)
The Minister submits that the Applicant cannot allege to have not been on notice of the dispositive issues on review, particularly as the Applicant had conceded at the hearing that he had been in breach of his Visa between the period 27 June 2017 to 1 May 2018.
Particular (c)
The Applicant alleges he was not afforded procedural fairness as adequate reasons were not put to him in regard to the Tribunal’s Decision not to revoke the cancellation.
The Minister contends that this may be read as a complaint in relation to the NOICC. The Minister notes that the NOICC was sent by registered post to the Applicant’s last known address in compliance with s 119(2) of the Migration Act and r 2.55(3) of the Regulations. As such, no error is made out.
The Minister notes that the Court has no jurisdiction to review the Delegate’s Decision, being a primary decision as outlined in s 476(2)(a) of the Migration Act.
Particular (d)
The Applicant alleges error on the basis that a copy of the PRISM records were not provided to him.
The Minister submits that the Tribunal was under no obligation to put the particulars of the PRISM records to the Applicant for comment pursuant to s 359A of the Migration Act as the Tribunal’s findings were based on information provided by the Applicant himself. Information pertaining to the Applicant’s enrolment was contained in the Delegate’s Decision and provided orally at the Tribunal hearing, thus falling within the exception in s 359A(4)(b) of the Migration Act.
Particulars (e), (f) and (g)
The Minister submit that these particulars do not raise anything new and as such fail to demonstrate jurisdictional error.
PRINCIPLES
General
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.
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.[20]
[20] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
“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.[21] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[22]
[21] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[22] Yusuf at [82] (per McHugh, Gummow and Hayne JJ).
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[23] 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”.[24] Different kinds of error may overlap.[25] The categories are not closed.[26]
[23] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[24] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[25] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82].
[26] LPDT at [3].
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.[27] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[28] It has been described as an “undemanding” standard.[29]
[27] LPDT at [7].
[28] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[29] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Student Visa (Subclass 500)
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.
The criteria that the Applicant was required to satisfy for the grant of a Student visa (Subclass 500) are set out in cl 500.211 to 500.218 in Schedule 2 of Regulations.[30]
[30] See Regulation 2.05(1).
Clause 500.211 of Schedule 2 of the Regulations provides:
a. the applicant is enrolled in a course of study;
b. if the application is made in Australia - the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;
c. if the applicant is a Foreign Affairs student-the applicant has the support of the Foreign Minister for the grant of the visa;
d. if the applicant is a Defence student-the applicant has the support of the Defence Minister for the grant of the visa.
Cancellation of Visa
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 condition 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.
PAM3
The Department’s Procedures Advice Manual 3, General visa cancellation powers (PAM3) provides 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.
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.
CONSIDERATION
Ground 1
Ground 1 is that:
1. The decision of the Tribunal dated 4 July 2019 was an improper exercise of power conferred by the Migration Act 1958 and Migration Regulations 1994 in that it involved the exercise of a discretionary power without regard to the merits of the particular case. (Ground 1).
Particulars
a.There was no evidence or other material to justify the making of the decision as the decision was based on the existence of a particular fact and that fact did not exist.
b.Applying Cardenas v Minister for Immigration and Multicultural Affairs [2001] FCA 17 the power conferred by s 116(1)(a) was discretionary. On one reading of the Tribunal’s decision, it is clear the Tribunal failed to recognised that there was a discretion to be exercised.
c.The Second Respondent did not give consideration to the exercise by it of the discretion vested in it. There was no discussion in its reasons of whether, in all the circumstances placed before it, the Second Respondent might exercise its own discretion not to cancel the visa.
There can be little doubt from the terms of the Tribunal’s Decision that the Tribunal was aware that the decision involved the exercise of a discretionary power:
The applicant’s visa was subject to a number of conditions as described by schedule 8 of the Migration Regulations 1994. In the present case, the issue is whether the applicant has breached condition 8202 of the regulations. If the applicant breached that condition the visa may then be cancelled pursuant to section 116. (emphasis added)
…
Having found the applicant has not complied with the condition of the visa, the tribunal must consider whether the visa should be cancelled. There are no matters specified in the act or regulations that must be considered in the exercise of this discretion. However, the tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the applicant in the course of the hearing and any relevant matters identified in the department’s Procedures Advice Manual known as PAM3, titled ‘General Visa Cancellation Powers’.
(Emphasis added)
The Tribunal proceeded to evaluate the various matters that were relevant to the exercise of the discretion and concluded that it was “satisfied that the applicant’s visa ought to be cancelled”.[31] In these circumstances, I do not consider there to be any merit to the contents that “the Tribunal failed to recognise that there was a discretion to be exercised” or that the Tribunal “did not give consideration to the exercise by it of the discretion vested in it”.
[31] CB 344-346.
I am unable to make sense of the contention that “decision was based on the existence of a particular fact and that fact did not exist.” The non-existent fact is not identified. It is not evident on the face of the Tribunal’s Decision and was not identified at the Hearing.
I am not satisfied that jurisdictional error is made out by reference to Ground 1.
Ground 2
Ground 2 is that:
2. That decision of the Second Respondent (Tribunal) is affected by jurisdictional error on the basis that the Tribunal misconstrued and misapplied section 116 Migration Act 1958 (the Act). (Ground 2).
Particulars
a.The Tribunal failed to consider section 116(2) of the Migration Act 1958 where it provides the “Minister is not to cancel a visa under subsection (1)…if there exist prescribed circumstances in which a visa is not to be cancelled”
b.The Tribunal failed to put the Applicant on notice of the issues dispositive to its decision.
c.The Tribunal failed to afford the applicant procedural fairness as adequate particulars of the information upon which the decision not to revoke the cancellation was based were not provided to the applicant for his comment applying Noeung v Minister for Immigration and Multicultural and Indigeous Affairs [2002] FCA 1304.
d.A copy of the PRISMS report was not provided to the Applicant.
e.The Tribunal misconstrued section 116(1)(b) in finding ground of cancellation exists under the said section.
f.The breach of condition 8202 (if any) does not entail cancellation of visa pursuant to section 116 of the Act.
g.The Tribunal erred in not applying the facts when considering grounds of cancellation in section 116(1) of the Act.
Particulars (a)
Section 116(1) of the Migration Act provides that “Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that… a prescribed ground for cancelling the visa applies to the holder”.
Section 116(2) of the Migration Act provides that “The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.”
Particular (a) complains that the Tribunal “failed to consider” s 116(2) of the Migration Act, but does not identify the “prescribed circumstances” that are alleged to exist. Further, there was no evidence before the Tribunal (or me) of the existence of any “prescribed circumstances”.
Finally, as a matter of construction, I do not consider that the Tribunal’s satisfaction of the nonexistence of the “prescribed circumstances” was a condition of the exercise of power. Section 116(1) of the Migration Act is expressed to be “subject to” s 116(2), and not conditional upon the decision maker’s satisfaction of the matters in s 116(2) (including the non-existence of the “prescribed circumstances”.
There is no merit in particular (a).
Particular (b)
Part V of the Migration Act contains provisions concerning “Reviewable-Migration Decision and Reviewable Protection Decisions”.
Particular (b) complains that the Tribunal failed to put the Applicant on notice of the issues dispositive to its decision.
Section 360(1) of the Migration Act provided, amongst other things, that the Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments “relating to the issues arising in relation to the decision under review”.
In Minister for Immigration & Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, the Full Court held (at [37]-[38]) that provision s 425 (the equivalent of s 360(1) in respect of Part VII-reviewable decisions) of the Migration Act requires that applicants be provided with a “real and meaningful opportunity” to make arguments and present evidence before the Tribunal”:
... it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
In ABV16 v Minister for Immigration and Border Protection [2017] FCA 184, the court held that s 425 of the Migration Act imposed an ongoing requirement.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), the High Court stated (at [35]):
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.
Where the Tribunal takes no step to identify issues, other than those considered by the delegate to be dispositive, the applicant is entitled to assume that those are the issues on review. Hence, unless the Tribunal tells an applicant something different, he or she would be entitled to assume that the reasons of the delegate will identify the issues that arise in relation to that decision.[32]
[32] SZBEL at [36].
However, the Tribunal is not confined to the issues identified by the delegate as dispositive. Whether the Tribunal seeks to rely on other dispositive uses, those issues are required to be identified, so that the Applicant may be afforded the opportunity to give evidence and present arguments in respect of them. But the Tribunal is not required to give “a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure”.[33] On the other hand there is no obligation to identify matters that are “obviously… open on the known materials”.[34]
[33] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per Gleeson CJ and Hayne J (at 69).
[34] SZBEL at [38].
Here the “issues arising in relation to the decision under review” are those identified by the Delegate to be dispositive. Accordingly, the issues arising in relation to the decision under review are identified in the Delegate’s Decision, and there is no breach of the requirement in s 360 of the Migration Act.
There is no merit in particular (b).
Particulars (c) and (d)
Particular (c) complains that the Tribunal failed to afford the Applicant procedural fairness as adequate particulars of the information upon which the decision not to revoke the cancellation was based were not provided to the Applicant for his comment.
Particular (d) complains that a copy of the PRISMS records were not provided to the Applicant.
Section 359A of the Migration Act provided, amongst other things, that the Tribunal must give clear particulars of information that “would be the reason, or a part of the reason, for affirming the decision that is under review” together with other information. The notification requirement in s 359A of the Migration Act is mandatory, such that a breach of the section may constitute jurisdictional error.[35]
[35] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294.
The term “information” in this context “is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[36]
[36] SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297 at [18].
The notification obligation in s 359A of the Migration Act is subject to exceptions. Section 359A(4)(b) of the Migration Act provides an exception in the case of information “that the applicant gave for the purpose of the application for review”. The “information” contained in the PRISMS records (namely the Applicant’s non enrolment) was contained in the Delegate’s Decision record which the Applicant provided to the Tribunal for the purpose of the review.[37] Further, the Applicant gave the same “information” to the Tribunal orally at the hearing.[38] Accordingly, the relevant information (concerning non-enrolment) fell within the exception to the obligation in s 359A of the Migration Act.
[37] CB 26 (Document 1). See also CB 20 (Decision Record). The Delegate’s decision records “Based on evidence available to me in the Provider Registration and International Student Management System (PRISMS), it appears that the visa holder has not been enrolled in a registered course of study since 27 June 2017.”
[38] See CB 344 [21].
There is no merit in particulars (c) and (d).
Particulars (e), (f) and (g)
Particulars (e), (f) and (g) cover the same matters as are addressed under Ground 1. For reasons set out above, I do not consider there to be any merit to Particulars (e), (f) and (g).
Conclusion
I am not satisfied that jurisdictional error is made out by reference to Ground 2.
CONCLUSION
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,[39] the Application for review must be dismissed.
[39] 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
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $5,450 being less than the scale amount.[40] The Applicant submitted that costs should be in an amount less than $5,450. I am satisfied that costs ought to follow the event,[41] and that it is appropriate to make an Order in the amount sought by the Minister having regard to the scale and the extent of work undertaken as evidenced by the court file.[42]
[40] 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.
[41] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[42] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 30 July 2025
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