Tsang v Minister for Immigration

In *Tsang v Minister for Immigration*, the applicant sought judicial review of a decision by the Migration Review Tribunal (MRT) to affirm the cancellation of her student visa. The central dispute concerned which version of the *Migration Regulations 1994* (Cth) applied to the MRT's consideration of the visa cancellation, and whether the cancellation decision had been "finally determined" before the MRT's review. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The court was required to determine two primary legal issues. Firstly, it needed to ascertain whether the MRT had applied the correct version of the *Migration Regulations 1994* when assessing the applicant's case, particularly in light of potential amendments to the regulations during the period in question. Secondly, the court had to consider the meaning and application of the phrase "finally determined" in the context of a visa cancellation decision that was subject to merits review by the MRT.

Judge Driver reasoned that the operative version of the *Migration Regulations 1994* was that in force at the time the MRT made its decision, not at the time of the original cancellation. The court held that a visa cancellation decision is not "finally determined" for the purposes of the *Migration Act 1958* (Cth) until all available merits review processes, including review by the MRT, have been exhausted or completed. Consequently, the MRT was bound to apply the regulations as they stood at the time of its own determination. The application for judicial review was dismissed.