Tayyil and Ors v Minister for Immigration and Anor

The applicants, Mr Tayyil and others, sought judicial review of a decision by the Minister for Immigration and Border Protection, the second respondent, to cancel Mr Tayyil's Employer Nomination (Residence) (Class BW) visa. The Administrative Appeals Tribunal (Migration and Refugee Division) had affirmed the delegate's decision to cancel the visa. The applicants contended that the Tribunal had made jurisdictional error by constructively failing to conduct the required review and by making an unreasonable exercise of discretion under section 109 of the *Migration Act 1958* (Cth).

The primary legal issues before the court were whether the Tribunal had constructively failed to conduct the review required by Part 7 of the *Migration Act*, specifically concerning the delegate's consideration of Mr Tayyil's outstanding debts to the Commonwealth, and whether the Tribunal's decision to affirm the cancellation of the visa constituted an unreasonable exercise of discretion under section 109(2) of the Act. The applicants also argued that the Tribunal failed to have regard to Mr Tayyil's payment of the alleged debt and the delegate's promise of sympathetic treatment.

Justice Street dismissed the application, finding no jurisdictional error. The court noted that the delegate had considered the best interests of the children, the disappointment to the visa holder and his spouse, and Mr Tayyil's subsequent good behaviour. However, the delegate also found that Mr Tayyil had deliberately provided incorrect information regarding his debt, identity, previous stay in Australia, and employment history in his visa application, which was material to the grant of his visa and those of his family. The delegate concluded that the reasons for cancellation outweighed the reasons for not cancelling the visa, and exercised the discretion under section 109 to cancel the visa. The court found that the Tribunal had properly considered the delegate's decision and the grounds for cancellation, and that the exercise of discretion was not unreasonable.