Thamarath v Minister for Immigration and Citizenship
[2025] FedCFamC2G 810
•2 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thamarath v Minister for Immigration and Citizenship [2025] FedCFamC2G 810
File number: MLG 1422 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 2 June 2025 Catchwords: MIGRATION – student (class TU) (subclass 500) visa – where delegate cancelled visa under s 116(1)(b) of the Migration Act 1958 (Cth) for non-compliance with visa condition – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – whether Tribunal misapplied policy guidance when affirming delegate’s decision – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed Legislation: Migration Act 1958 (Cth) ss 48, 116, 116(1)(b), 140, 198, 338, 348, 353, 357A, 368, 476
Migration Regulations 1994 (Cth) sch 8, conditions 8202, 8202(2)(a)
Cases cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038, 142 FCR 43
Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 290
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 2 April 2025 Dates of hearing/s: 22 January 2025, 17 April 2025 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr R O’Shannessy Solicitors for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1422 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMED HISHAM THAMARATH
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
2 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.The applicant’s application for judicial review filed on 9 May 2019 is dismissed.
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 Gostencnik
INTRODUCTION
On 4 April 2019 the former Administrative Appeals Tribunal (Tribunal) affirmed a decision of a delegate of the (then) Minister for Immigration, Citizenship and Multicultural Affairs to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (Act)[1]. The delegate’s cancellation decision made on 22 February 2018 was underpinned by the applicant’s failure to remain enrolled in a registered course as required by a condition attaching to the visa. The applicant has applied under s 476 of the Act seeking judicial review of the Tribunal’s decision. For the reasons which follow, that application will be dismissed.
[1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
BACKGROUND
The applicant, an Indian national, arrived in Australia on 5 March 2015 on a student visa to study a Master of Business Administration (MBA) at Deakin University (Deakin) with a course end date of 30 November 2017.
On 18 January 2018, the applicant was issued a Notice of Intention to Consider Cancellation (Notice) of his visa for purported non-compliance with condition 8202(2)(a) of Sch 8 to the Migration Regulations 1994 (Cth) (Regulations)[2]. The Notice informed the applicant that the Minister may, pursuant to s 116(1)(b) of the Act, subject to not presently relevant exceptions, cancel a visa if the Minister is satisfied that the visa holder has not complied with a condition of the visa. The Notice:
(a)advised the applicant that:
(i)condition 8202(2)(a) of Sch 8 to the Regulations relevantly provided that the visa holder “must be enrolled in a full-time registered course”;
(ii)based on evidence available through the Provider Registration and International Student Management System (PRISMS), it appeared that the applicant had not been enrolled in a registered course of study since 23 May 2017; and
(b)invited the applicant to comment on the grounds for cancellation and provide any supporting evidence why the visa should not be cancelled.
[2] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force.
The applicant appointed a registered migration agent to receive and respond to written communications on his behalf. On 25 January 2018, the migration agent responded to the Notice on behalf of the applicant and attached: an undated letter addressed to the case officer; an affidavit by the applicant’s father affirmed on 25 January 2018; a medical certificate evidencing that the applicant was unfit to attend his classes from 24 August 2016 to 24 October 2016 inclusive; an application to study an MBA at Deakin; a letter addressed to Deakin requesting re-admission to the MBA; receipts for student fees; and an overseas confirmation of enrolment (COE) to study a MBA with Deakin.
The undated letter explained that the applicant:
(a)faced difficulties studying his course;
(b)experienced health issues, namely back pain; consulted a doctor; and applied to intermit his course for trimester 2, which Deakin approved;
(c)extended his COE and visa to 30 November 2017 and 15 March 2018, respectively;
(d)returned to study in trimester 1 of 2017, but was unable to pay his course fees as his family’s business faced a financial loss;
(e)requested Deakin extend the payment due date; he was unable to pay the course fees by the due date; and his enrolment was cancelled on 23 May 2017; and
(f)he applied for re-admission to the course on 16 January 2018.
The Department contacted Deakin to ascertain further information, including whether the applicant was re-admitted to the MBA, and to confirm whether the applicant was enrolled in the course. A compliance officer from Deakin responded to the email on 7 February 2018 confirming that:
(a)the applicant paid all outstanding fees for the course;
(b)the applicant had applied for re-admission but the application was still being processed;
(c)the applicant applied for re-admission on 16 January 2018; however, the documents were incomplete, and Deakin contacted the applicant again for additional documents on 2 February 2018; and
(d)the applicant was not enrolled in a course as evidenced by the PRISMS record, because his re-admission application was pending and a decision had not yet been made.
On 15 February 2018, Deakin confirmed to the Department that it refused the applicant’s application for re-admission.
The applicant’s visa was cancelled by the delegate on 22 February 2018 pursuant to s 116(1)(b) of the Act for non-compliance with condition 8202(2)(a) of Sch 8 to the Regulations, and a notification of the decision was sent to the applicant by email. The delegate concluded that the grounds for cancelling the visa outweighed those against cancellation.
TRIBUNAL PROCEEDING
The applicant applied to the Tribunal for a review of the delegate’s decision. The Tribunal acknowledged receipt of the application by correspondence on 2 March 2018, which enclosed an ‘Information for review applicants’ factsheet. On 8 March 2019, the Tribunal invited the applicant to attend a hearing scheduled for 29 March 2019 to give evidence and present arguments relating to the issues in his case. The Tribunal enclosed with its invitation an ‘Information about hearings – MR Division’ factsheet, and requested the applicant complete and return a ‘Response to hearing invitation – MR Division’ form to confirm his attendance at the hearing, and to provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider.
On 8 March 2019, the applicant’s migration agent returned the ‘Response to hearing invitation – MR Division’ form indicating the applicant’s intention to appear at the scheduled hearing with his representative. On 28 March 2019, the migration agent provided the Tribunal with various documents and evidence on behalf of the applicant in support of the review application. Those documents included: a letter addressed to the Tribunal member dated 28 March 2019; an academic transcript for the MBA with Deakin; an email from a Deakin compliance officer to the applicant dated 8 September 2016 confirming approval of his intermission; evidence of the applicant’s financial capacity; and a Wikipedia page regarding Saudi Arabia’s economic and industrial policy called ‘Saudization’.
The migration agent’s letter dated 28 March 2019 sought consideration for the applicant against cancellation for breach of condition 8202 of the Regulations. It reiterated his previous written submissions, and in substance it further provided:
(a)the applicant acknowledged he breached visa condition 8202; however, he contended that his circumstances and poor judgment led to the breach of the condition;
(b)after intermission from university studies, the applicant resumed his studies (trimester 5) in the period November 2016 to February 2017, in that time enrolling in one subject because of the availability of relevant subjects;
(c)on commencement of trimester 6, he was required to pay his course fees within one month;
(d)because his family’s business experienced a financial loss, he was unable to pay his course fees, and he sought and obtained an extension of time from Deakin to pay those fees;
(e)as the applicant was still unable to pay the fees by the amended deadline, Deakin cancelled his enrolment on 23 May 2017;
(f)the applicant paid his arrears of fees on 28 November 2017;
(g)the applicant sought re-admission to the course on 16 January 2018; and
(h)a recapitulation of the applicant’s reasons for studying the MBA; the value of the course to his future; the degree of hardship the applicant will face if his visa is cancelled by way of psychological and financial problems, and his inability to secure employment.
TRIBUNAL’S DECISION AND REASONS
The applicant attended the scheduled hearing and was assisted by his migration agent. By its decision made on 4 April 2019, the Tribunal affirmed the delegate’s decision to cancel the applicant’s student visa. The applicant was notified of the Tribunal’s decision on 8 April 2019 by email transmission, and was provided with a copy of its Statement of Decision and Reasons (Decision) and an ‘Information about decisions – MR Division’ factsheet.
At [1]–[9] of the Decision, the Tribunal summarised the application under review and referenced the relevant statutory provisions — s 116 of the Act and condition 8202 of Sch 8 to the Regulations — and noted its consideration of matters outlined in the Department’s Procedures Advice Manual ‘General visa cancellation powers’ (PAM3): Decision at [13]. The Tribunal dealt with the question whether the applicant complied with condition 8202, concluding — based on the applicant’s admission that he had not been enrolled in a registered course of study since 23 May 2017 — that the applicant had not complied with condition 8202(2)(a): at [11]–[12]. As the Tribunal was satisfied that the ground to cancel the visa existed, it set out at [14]–[56] its consideration whether to cancel the applicant’s visa.
At [13] of the Decision, the Tribunal notes that neither the Act nor the Regulations specify matters that must be considered in the exercise of the discretion whether to cancel a visa once non-compliance with a condition had been established. The Tribunal noted that it had regard to, inter alia, the matters raised by the applicant, and the matters in PAM3.
The Decision records that the applicant gave the following evidence during the hearing:
(1)his purpose of stay in Australia was to study at a higher education level. He completed half of his MBA course, but “feels stuck in Australia” and expressed a desire to complete the remaining seven units and then return to India: Decision at [14]–[15];
(2)his enrolment was cancelled in May of 2017 as his father was experiencing financial difficulties; he was unable to pay his course fees and consequently was unable to sit his exams: at [19];
(3)he was unable to re-enrol in his course since it was cancelled nearly 2 years prior to the hearing, but he had maintained residence in Australia since. The applicant paid all course fees and sought re-admission on 16 January 2018. He believed that his re-admission was refused because of the Notice which he received on 18 January 2018: at [20];
(4)the delay in applying for re-admission was a result of his lack of knowledge of Australia’s migration laws, as he believed that his visa would be reinstated upon payment of his course fees, and he admits that it was a mistake and accepts responsibility: at [22];
(5)he has not breached any other condition of his student visa as the Department never raised any concerns other than his breach of condition of 8202: at [24];
(6)without completion of his MBA qualification, it would be impossible for him to find a job in India: at [26];
(7)he suffered anxiety and depression when his enrolment was cancelled but did not seek medical help, nor does he have any documents or reports to corroborate his claim: at [29]–[30];
(8)at the time of the hearing, his family was in a better financial position and able to support him financially until he completed his studies: at [33]–[34];
(9)between the time that the applicant’s enrolment was cancelled on 23 May 2017 and the payment of his arrears on 28 and 30 November 2017, he experienced depression but remained in Australia as his friends were assisting him pay rent and his father provided him with financial assistance: at [41]; and
(10)he believed that if he paid his course fees, his enrolment would be reinstated. The applicant acknowledged that this was a case of poor judgment: at [42].
The Tribunal made several observations and findings, including the following:
(1)that the applicant had resided in Australia for over four years, but had completed just one year of study. The Tribunal did not accept that the applicant’s desire to pursue an MBA amounted to a compelling need for him to remain in Australia: Decision at [16]– [17];
(2)that at the time of the delegate’s decision, the applicant had not been enrolled in a registered course for over eight months — “a significant and ongoing breach of condition 8202(2) that attached to his Student visa” — and acknowledged that this was caused by factors outside of his control; however, the fact that it took the applicant over six weeks after paying his arrears of course fees to apply for re-admission was a matter within the applicant’s control: at [21]–[22];
(3)that over six months had elapsed between the cancellation of the applicant’s enrolment and the payment of arrears of course fees. The failure to contact Deakin or the Department, or to obtain independent advice, added to the seriousness of the applicant’s breach of his visa conditions: at [22]–[23];
(4)the Tribunal accepted that the applicant did not breach any condition — apart from condition 8202 — of his student visa: at [24];
(5)that because of a lack of evidence, the Tribunal made no finding about the degree of psychological hardship the applicant experienced when his enrolment was cancelled: at [30];
(6)the Tribunal accepted that the applicant would face significant financial and emotional hardship from the cancellation of his visa; however, this hardship was ameliorated by the applicant’s own failure to manage his affairs within the six months between the cancellation of his enrolment and the payment of arrears of course fees. The applicant’s actions contributed to the cancellation of his student visa and hardship he suffered: at [32], [37];
(7)the Tribunal accepted that the applicant’s parents would suffer financial and emotional hardship as a result of their son’s visa cancellation: at [35]–[36];
(8)the Tribunal recognised that the applicant’s family’s financial difficulties were outside of the applicant’s control, but did not accept that all circumstances contributing to the applicant’s visa cancellation were outside of the applicant’s control: at [39]–[40]; and
(9)the applicant did not provide any significant evidence of him taking positive steps to rectify the breach of the condition of his visa; did not provide evidence that he had spoken to his education provider about re-enrolment requirements or deferral of studies; did not provide evidence that he had spoken with a legal or migration agent, nor the Department about his circumstances, nor did he provide any medical evidence supporting his assertion that he experienced depression and an anxiety disorder: at [44], [46].
The Tribunal ascribed some weight in favour of cancellation to the first matter and considerable weight to the second and third matters. The Tribunal noted that matters six and seven weigh against cancellation of the applicant’s student visa, but those matters were significantly, although not completely, ameliorated on the basis of the applicant’s own inaction that led to the cancellation. The Tribunal also noted that matters eight and nine weigh in favour of cancellation of the applicant’s visa.
The Tribunal noted at [48] of the Decision that there was no evidence that the applicant was uncooperative with Departmental staff, and there were no dependants attached to the applicant’s student visa and so there would be no consequential cancellations under s 140 of the Act: at [49]. The Tribunal also recounted and adopted the delegate’s findings that the applicant would have limited options to apply for further visas in Australia if his visa was cancelled in accordance with s 116 of the Act, because of the operation of s 48 of the Act: at [51]. Cancelling the applicant’s visa would mean that he would become an unlawful non-citizen, which would make him liable to be detained under s 189, and removed from Australia pursuant to s 198: at [55]–[56].
The circumstances considered as a whole led the Tribunal to conclude that the applicant’s visa should be cancelled: Decision at [57]. Accordingly, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa: at [58].
CONSIDERATION
The applicant’s judicial review application filed on 9 May 2019 contains 5 grounds by which he contends the Tribunal erred, and which are reproduced below:
1.The Tribunal failed to have proper regard to the Applicant’s circumstances and hardship and consequently failed to exercise its discretion properly.
2.The Tribunal erred in finding that the applicant’s visa should be cancelled and failed to give proper weight and consideration to the oral and written statements and documents submitted by the applicant. By doing so, the tribunal erred jurisdictionally by failing to objectively and fully consider the evidence before it or by discounting the evidence before it
3.The Tribunal has accordingly breached Sections 338, 348, 353 and 357A of the Migration Act by its failure to properly review the decision that was before it and further by its failure to act in a way that is fair and just.
4.The Tribunal has further breached Section 368 of the Migration Act by its failure to provide proper reasons for its decision and the findings on the material questions of fact on which the decision was made.
5.The decision of the Tribunal 4 April 2019 under review was and is invalid in that:
a) the Second Respondent (“the Tribunal”) wrongly affirmed the decision of the delegate;
b) the Tribunal reached a mistaken conclusion by saying that it does not accept that (sic) the Applicant’s present circumstances and desire to complete his MBA;
c) The Tribunal erred in finding that the Applicant has no compelling circumstances to remain in Australia to complete his MBA;
d) The Tribunal failed to properly consider the hardship that may be caused to the Applicant and his family members if he was not allowed to complete his MBA; and
e) In light of the foregoing, the Tribunal acted improperly and unreasonably by affirming the decision of the delegate.
I deal with these in turn below.
Ground 1
By ground 1 the applicant says that the Tribunal did not have proper regard to his circumstances and hardship, and failed to exercise proper discretion. The ground is not particularised. In his written submissions, the applicant argues that whilst the Tribunal acknowledged his financial hardship, it diminished its importance by attributing the hardship to his inaction. He argues the Tribunal did not properly consider the external foreign policy that impacted on his family’s financial circumstances and hence on his capacity to meet his financial obligations. The applicant submitted the “Tribunal failed to give [this matter] the weight it deserved”. He contends that his real complaint is about the Tribunal’s failure to consider critical evidence that it was required to under the law. The applicant does not point to any mandatory consideration the Tribunal was required, but failed, to consider. As the Tribunal correctly observed, neither the Act nor the Regulations specify any mandatory considerations which the decision maker is required to take into account when considering the exercise of the discretion to cancel a visa, once non-compliance with a visa condition is established.
Although not a mandatory consideration, the Tribunal plainly took into account the applicant’s financial circumstances, accepting that this was outside of his control. The applicant’s only real complaint is that the Tribunal did not give the consideration enough weight. The Tribunal ultimately diminished the weight it gave this consideration in favour of the applicant because it formed the view the applicant’s inaction contributed to the cancellation of his enrolment. It did not find, as the applicant seems to suggest, that the applicant contributed to his financial circumstances by his inaction. Instead, the Tribunal noted that he failed to “take reasonable steps to address the breach of a condition of his visa for over six months”. That was the inaction to which the Tribunal referred, and it was a finding reasonably open to the Tribunal on the material before it.
A perusal of the Decision discloses that the Tribunal considered at length the applicant’s circumstances and hardship and the applicant’s evidence about these matters. Although complaining about the Tribunal’s failure “to properly consider [his] individual circumstances and the significant hardship”, beyond that discussed in the previous two paragraphs, the applicant did not identify any other matter he says the Tribunal failed to properly consider.
Complaints about weight ascribed by the Tribunal to a particular matter, without more, do not sound in jurisdictional error and merely invite the Court to engage in impermissible merits review. Ground 1 therefore fails.
Ground 2
By ground 2 the applicant contends error because the Tribunal failed to give proper weight and consideration to his oral and written statements and the documents he submitted. He says the Tribunal failed to objectively and fully consider the evidence, or discounted it. None of these contentions are particularised. In his written submissions, the applicant contends that he “provided documentation, including receipts for fee payments and [his] application for re-enrolment, demonstrating [his] efforts to remedy the situation [but] the Tribunal found this evidence insufficient”. The applicant says the Tribunal wrongly assumed that the delay in his re-enrolment application was due to negligence on his part, without considering that the university was closed for the holiday period. Consequently, the applicant says this misinterpretation of the facts constitutes a legal error. However, during the hearing of this application, the applicant said he had not provided any evidence to the Tribunal that he was unable to re-enrol for the reason alleged in his submission. The reference in the applicant’s materials before the Tribunal, suggesting that when he had almost completed the re-enrolment documents the university closed for Christmas, is not supported by any evidence about the closure, or how the closure affected the University’s capacity to accept or receive enrolment documents. The Tribunal cannot be criticised for failing to consider evidence about a matter that was not put to the Tribunal. In any event, even if the Tribunal had erroneously overlooked the applicant’s difficulty in enrolling, the error is not material because it could not have made a difference to the ultimate outcome since the applicant’s readmission application was refused, as noted in the delegate’s decision.
Moreover, the Tribunal expressly referred to the documents submitted by the applicant at [5] of the Decision, which included a six-page written submission with various attachments. The Tribunal recorded that it had regard to the applicant’s oral evidence at [6] and [56] of the Decision. The Tribunal was otherwise entitled to attribute weight to these matters as it thought appropriate. Ground 2 does not disclose jurisdictional error and fails.
Ground 3
By ground 3, the applicant contends that the Tribunal failed to properly review the decision before it and failed to act in a way that is fair and just, thereby contravening ss 338, 348, 353 and 357A of the Act. The applicant does not particularise these allegations. By his written submissions the applicant says that s 357A requires the Tribunal to treat applicants fairly, yet it “overlooked the external factors—such as the Saudization policy that hindered his ability to comply with visa conditions”. He says he was not given a genuine opportunity to explain how these external circumstances affected his compliance, and the Tribunal’s minimal reference to these factors suggests a failure to adhere to the statutory requirements of fairness and procedural fairness. These contentions are misconceived.
Sections 338 and 348 of the Act are provisions outlining the scope of the Tribunal’s review. Section 353 states that the Tribunal must act according to substantial justice and the merits of the case. Section 357A codifies the natural justice hearing rule. The applicant does not point to any of the codified elements of the natural justice hearing rule which the Tribunal might be said to have breached. Apart from pointing to the external foreign policy that impacted on his family’s financial circumstances and hence on his capacity to meet his financial obligations, which the applicant asserts the Tribunal did not expressly mention, he points to no other “external factor” which he says the Tribunal did not consider. As to the external policy matter, described as the “Saudization policy” raised by the applicant, the Tribunal was not required to separately consider that matter since it had already accepted, in the applicant’s favour, that his family’s financial circumstances which contributed to his non-compliance were beyond the applicant’s control. What caused the family’s financial circumstances would add nothing to the assessment the Tribunal had already made. Ground 3 does not disclose jurisdictional error and fails.
Ground 4
By ground 4, the applicant contends that the Tribunal failed to provide proper reasons for its decision and accordingly breached s 368 of the Act.
Section 368 of the Act provided as follows:
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
The Tribunal provided the applicant with a copy of the Decision on 8 April 2019 by email transmission, which was made on 4 April 2019. The Decision set out the issues before the Tribunal, the evidence and material it considered, the findings it made and reasons for those findings, and the conclusion it reached. In his written submissions, the applicant only identifies that the Tribunal “does not adequately explain its reasoning regarding the Saudization policy, which is critical to understanding the decision”. As already explained, the Tribunal did not need to deal with the causes of the applicant’s family’s financial circumstances. It considered those circumstances contributed to the applicant’s non-compliance and that those circumstances were beyond his control. No error is thereby evident. And in the absence of any other further particulars, ground 4 is without merit and fails.
Ground 5
By ground 5, the applicant makes several allegations. He says the Tribunal’s decision is invalid because it erroneously: did not accept the applicant’s circumstances and desire to complete an MBA; found that the applicant has no compelling circumstances to remain in Australia to complete his MBA; and failed to properly consider the hardship caused to the applicant and his family members if he was not allowed to complete his MBA. In his written submissions the applicant says that the Tribunal misjudged his intentions and the severity of his situation, and failed to give proper weight to his efforts to resolve the issues. He says this constitutes a legal error, not just a disagreement over the facts as found.
I agree with the first respondent that this ground, like most of the other grounds raised, cavils with the outcome before the Tribunal and seeks impermissible merits review. Moreover, the Tribunal considered and accepted that “the applicant will suffer significant financial and emotional hardship from the ongoing cancellation of his visa”: Decision at [32]. The Tribunal also accepted that “the applicant’s family will suffer financial hardship”, and that the applicant’s parents may suffer “considerable emotional hardship”: at [35]. The Tribunal reasoned, however, that the degree of hardship was ameliorated by “the applicant’s failure to take reasonable steps to address the breach of [the] condition of his visa for over six months”: at [37]. The Tribunal’s reference to “ameliorated” is an inaccurate use of the verb since it means to make something that is negative, bad or unsatisfactory, better. But read in context it is evident the Tribunal meant that the weight it would otherwise ascribe to the hardship that is or will be suffered is diminished by the applicant’s failure to take reasonable steps to address the breach of the condition for over six months. This assessment and the attribution of weight it was open to the Tribunal on the materials before it. Ground 5 does not disclose jurisdictional error and fails.
During the hearing I raised with the first respondent whether the Tribunal had properly applied aspects of the PAM3 policy guidance in considering whether to cancel the applicant’s visa under s 116(1) of the Act. And if it did not, what consequences might follow. Specifically, the Tribunal appears not to have weighed some of the matters in PAM3 policy guidance favourably to the applicant as the guidance suggests the decision-maker should. It also appears to have considered the applicant’s non-compliance with the continued enrolment condition under the rubric of the extent of the applicant’s compliance with visa conditions, when the consideration is concerned with whether the applicant has otherwise complied with current or previous visa conditions. That is, conditions other than the extant condition which gave rise to considering whether the visa should be cancelled. The Tribunal also weighed the legal consequences of a visa cancellation that it identified at [50]–[52] of the Decision as favouring the cancellation of the applicant’s visa and reasoned that this was appropriate because it was the intended outcome of a finding that a breach of a visa condition resulting in cancellation. This might be said to run counter to the PAM3 policy guidance that these matters should generally be weighed in favour of the visa holder.
As earlier observed, the Tribunal noted at [13] that if a ground of cancellation exists, there are no matters specified in the Act or Regulations which must be considered in the exercise of its discretion. The Tribunal noted that it had regard to the matters in the PAM3 policy guidance. The document merely provides policy guidance about matters that should be considered but it does not bind the Tribunal. As Gray J observed in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038, 142 FCR 43 at [45]:
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 641 at [28] – [29] and Soegianto v Minister for Immigration & 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.
The Tribunal’s decision records that it considered the matters set out in the PAM3 policy. These include:
(a)the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia: Decision at [14]–[17] — the Tribunal determined that the applicant did not have a compelling need to remain in Australia;
(b)the extent of compliance with visa conditions: at [18]–[25] — the Tribunal accepted the applicant had not breached any other visa condition but reasoned that his failure to seek clarification or advice about his future study in Australia for over six months added to the nature and seriousness of the applicant’s breach of condition 8202(2) and so overall this matter was weighed adversely to the applicant, and considerably so;
(c)the degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members: at [26]–[37] — the Tribunal reasoned that the applicant will suffer financial and emotional hardship from the visa cancellation, but the applicant’s failure to manage his affairs “ameliorated” the weight given to his hardship;
(d)the circumstances in which the ground for cancellation arose: at [38]–[47] — the Tribunal noted the applicant did not provide evidence about any positive steps he took to rectify the breach of the visa condition, and relied on the hope that his father would pay his course fees;
(e)the past and present behaviour of the applicant towards the Department: at [48] — the Tribunal weighed the applicant’s behaviour towards the Department against visa cancellation;
(f)whether there are persons in Australia whose visas would, or may, be cancelled under s 140: at [49] — the Tribunal found there were no other persons whose visa would be cancelled under s 140 of the Act;
(g)whether there are mandatory legal consequences to a cancellation decision: at [50]–[52] — the Tribunal noted that visa cancellation means that the applicant would be an unlawful non-citizen and may be liable to be detained. The applicant may also have limited options to apply for further visas in Australia;
(h)whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation: at [53] — the Tribunal concluded that Australia would not be in breach of any international agreements if the applicant is removed from Australia; and
(i)any other relevant matter: at [54]–[56] — the Tribunal considered that the applicant’s Bridging E visa was granted after the cancellation of the student visa and so it could not have affected his opportunities to address the breach of the visa condition.
The Tribunal ascribed each consideration some weight (in each case either significant, considerable, some or neutral) and set out the reasons for so doing. It may be accepted that the PAM3 policy does not bind the Tribunal in any relevant sense. And as the Court observed in Drake v Minister for Immigration and Ethnic Affairs(1979) 46 FLR 409 at 420:
If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
I accept as the first respondent contended, that although the Tribunal weighed some of the considerations identified in the PAM3 policy adversely to the applicant and contrary to the suggestion in the PAM3 policy about how weight should be ascribed, this does not, in the instant case, give rise to error. This was because the matters the Tribunal identified, which resulted in the adverse weight ascribed, were themselves relevant, in the sense that they had a logical bearing on the Tribunal’s assessment. It was therefore entitled to consider those matters, and the Tribunal’s conclusion about the weight it would assign was open.
A consideration of the seriousness of the breach of the applicant’s visa condition was relevant to the ultimate discretion the Tribunal was to exercise, even if the consideration was not contemplated by the PAM3 policy’s exhortation to consider whether the applicant has otherwise complied with current or previous visa conditions. The consideration was not irrelevant. As already noted, the Tribunal found the applicant had not otherwise breached a visa condition but relevantly concluded that the nature of the applicant’s non-compliance outweighed the absence of non-compliance with other conditions, and appropriately ascribed the former considerable weight.
As to the Tribunal’s consideration of the mandatory legal consequences, the Tribunal identified the consequences, noting that visa cancellation would mean the applicant would be an unlawful non-citizen which may make him liable to be detained. The Tribunal noted the applicant would then have limited options to apply for further visas in Australia. The Tribunal considered the fact that these would be legal consequences for the applicant if his visa was cancelled as weighing in favour of cancelling the visa. This was because these consequences are intended to flow from a visa cancellation. Whilst reasonable minds might differ about whether that should be the way in which those consequences should be weighed, the Tribunal’s approach was open and does not disclose jurisdictional error.
The applicant’s written submission about the Tribunal’s application of the PAM3 policy amounted to little more than further complaints about the weight the Tribunal ascribed to various considerations. Those complaints are rejected, and for the reasons given earlier, the applicant’s contention in his written submissions that the Tribunal misapplied the PAM3 policy, so rendering the decision unreasonable, is also rejected.
Consequently, no jurisdictional error is disclosed in the grounds of review the applicant advanced nor in the matters pertaining to the Tribunal’s application of the PAM3 policy discussed above. As the applicant was unrepresented before the Court, I have also reviewed the Tribunal’s decision and the material in the Court Book filed by the first respondent, with an eye to identifying jurisdictional error beyond merely dealing with the grounds of review the applicant advanced. I have not identified any arguable case of jurisdictional error.
The application is dismissed.
The name of the first respondent is to be amended to reflect the most recent name change effective from 13 May 2025. I will hear the parties on costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 2 June 2025
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