Akhlaq v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1772

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. This is an application to review a decision made by the Administrative Appeals Tribunal ('Tribunal') on 16 April 2019. In that decision, the Tribunal affirmed a decision of a delegate of the Minister ('delegate') to cancel the Applicant's Student (Temporary) (Subclass 500) (Class TU) visa ('visa').
2. For the reasons that follow, I have decided to dismiss the application for review.

1. The Applicant is from Pakistan. He arrived in Australia on 14 January 2014 as the holder of a Higher Education (Subclass 573) visa to study a Master of Professional Accounting at Southern Cross University. The Applicant did not complete this course.
2. On 3 October 2017, the Applicant was granted a Student (Subclass 500) visa, following his enrolment in a Master of Business Administration at Holmes Institute. On 3 November 2017, the Applicant's enrolment in that course was cancelled due to non-payment of fees.
3. On 3 August 2018, the delegate wrote to the Applicant and issued a Notice of Intention to Consider Cancellation of the visa ('Notice') pursuant to section 116 of the Migration Act 1958 (Cth) ('Act'). The Applicant was invited to provide a response within five working days.
4. On 9 August 2018, a migration agent engaged by the Applicant requested a one-week extension of time to respond to the Notice. The delegate refused the request.
5. On 10 August 2018, the Applicant submitted a written statement dated 9 August 2018. In his statement, the Applicant claimed, among other things, that his father had financially supported him to study in Australia, but that financial support had been withdrawn as a result of his father being diagnosed with cancer. The Applicant stated he had been unsuccessful in securing financial support from other sources including relatives. Supporting documents were attached to the written statement, including email correspondence with Holmes Institute, an application for special consideration and medical records.
6. On 21 September 2018, the delegate cancelled the visa on the ground, inter alia, that the Applicant had not been enrolled in a registered course of study since 3 November 2017 and therefore did not meet the requirement of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) ('Regulations'). The Applicant was notified of the delegate's decision by email.
7. On 26 September 2018, the Applicant applied to the Tribunal to review the delegate's decision. Annexed to that application was a copy of the delegate's decision record, the Applicant's response to the Notice and a number of supporting documents.
8. On 8 March 2019, the Tribunal invited the Applicant to attend a hearing on 2 April 2019 to give evidence and present arguments relating to the issues arising in his case.
9. On 27 March 2019 and 1 April 2019, the Applicant's representative wrote to the Tribunal with further supporting documents, including two historical confirmations of enrolment in a Master of Professional Accounting at Southern Cross University, student enrolment records, and a letter of financial support dated 29 March 2019, purporting to be from the Applicant's uncle.
10. On 16 April 2019 the Tribunal affirmed the decision of the delegate to cancel the Applicant's visa ('Decision'). The Applicant was notified of the Decision on 17 April 2019.
11. At the Hearing before me on 14 October 2025, the Applicant relied on his Amended Initiating Application ('Application'), outline of written submissions filed 4 August 2025 and speaking notes prepared by his Counsel. The Minister relied on an outline of written submissions filed 5 May 2025. The Minister also prepared the Court Book which was tendered into evidence.

1. The Tribunal set out the relevant background to the matter at paragraphs [1]-[9] of its reasons. At paragraph [10] of its reasons, the Tribunal noted that the Minister may, under section 116 of the Act, cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out.
2. At paragraphs [11]-[13], the Tribunal considered whether grounds existed to cancel the visa. The Tribunal noted that the Applicant must be enrolled in a full-time registered course as required by condition 8202(2)(a) of the Regulations and noted the Applicant's acknowledgement that he was not enrolled in a full-time registered course. The Tribunal was therefore satisfied that the ground for cancellation of the visa existed. The Tribunal stated that that having established that the ground for cancellation under section 116(1)(b) existed, it was required to proceed to consider whether the visa should be cancelled.
3. At paragraphs [14]-[31], the Tribunal proceeded to consider whether the visa should be cancelled. The Tribunal stated at [14] that there are no matters specified in the Act or the Regulations that must be considered in the exercise of its discretion whether to cancel the visa. The Tribunal noted that it had regard 'to the circumstances of this case, including matters raised by the applicant, and matters in the Department's Procedures Advice Manual (PAM3) 'General visa cancellation powers''.
4. At paragraph [15], the Tribunal asked the Applicant about why he came to Australia to study. The Applicant advised that he came with his family's blessing, but that he struggled with coursework because he found it difficult and was distracted when his father became acutely ill with prostate cancer. The Applicant told the Tribunal that his father was unable to continue supporting him financially and other family members were unable to help him pay his tuition fees. At paragraph [16], the Tribunal noted that the Applicant had provided a letter of support from a relative in the USA who indicated he would pay all tuition fees incurred by the Applicant in Australia. The Applicant indicated that such support had not yet been provided.
5. At paragraphs [18]-[20], the Tribunal considered statements from the Applicant and evidence from him regarding the benefits to him in Pakistan of obtaining a further master's degree in Australia. The Tribunal accepted at paragraph [21] that multiple degree holders might obtain access to better opportunities in Pakistan, but did not accept on the evidence that an extra MBA from the Homes Institute in Australia would significantly enhance the Applicant's career or remuneration. The Tribunal stated that it 'is not satisfied that the applicant has a compelling need, in terms of his future career or employment prospects, to remain in Australia' (at paragraph [22]). The Tribunal went on to record at paragraph [23] that the Applicant had not been enrolled in a registered course from 3 November 2017 to 7 August 2018 and considered that the Applicant's 'prolonged period of non-enrolment' was 'a significant breach of his visa condition 8202'.
6. At paragraph [24] the Tribunal noted that the Applicant's father was ill. It noted the Applicant's statement that he would suffer emotional and psychological hardship if he was to return to Pakistan, and that he would feel a failure. At paragraph [25], the Tribunal noted the Applicant's acknowledgement that he had worked in Pakistan in the finance areas for companies and stated that it did 'not accept that the applicant would suffer financial hardship if he has to return to Pakistan as the holder of only one MBA'. Also in paragraph [25], the Tribunal considered the emotional and psychological hardship suffered by the Applicant and concluded it would be alleviated by his return to his family in Pakistan.
7. At paragraph [26], the Tribunal stated that the visa cancellation arose in circumstances of the Applicant failing in his coursework and having insufficient funds to pay his tuition fees. The Tribunal stated that it 'does not accept that these were circumstances beyond the applicant's control'. At paragraph [28] the Tribunal noted a range of matters including the Applicant being subject to section 48 of the Act, the Applicant's desire to remain in Australia and the state of the Applicant's qualifications (noting that he had sufficient qualifications to obtain employment in Pakistan and could undertake further training in Pakistan) before stating that it 'is not satisfied that the applicant has a compelling need to remain in Australia'.
8. In all of the circumstances above, the Tribunal concluded that the Applicant's visa should be cancelled.

APPLICABLE LAWS AND THE PROCEDURES ADVICE MANUAL

1. At the time, section 116(1)(b) of the Act relevantly provided as follows:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(b) its holder has not complied with a condition of the visa;...

1. It was a condition of the visa that the Applicant satisfy, inter alia, condition 8202 in the Regulations. That condition relevantly provided as follows:

(1) The holder must be enrolled in a full-time course of study or training if the holder is:

(a) a Defence student; or

(b) a Foreign Affairs student; or

(c) a secondary exchange student;

(a) must be enrolled in a full-time registered course:

...

1. The Procedures Advice Manual ('Manual') was relied on by the Tribunal in reaching its decision. In respect of decisions made under section 116 of the Act, the Manual notes explicitly under the heading 'Prescribed matters' that 'there are no prescribed matters to which the delegate must have regard in considering whether to cancel a visa under s 116'. Under the heading 'Matters that should be considered', the Manual provides that 'It is policy that delegates take into account the following ten matters'. A list of matters which may be considered then follows.

1. Before me, the Applicant accepted that grounds existed for the cancellation of the visa. The Applicant also accepted that once grounds for the cancellation of the visa existed, the Tribunal had a discretion as to whether the visa should be cancelled. Further, while the Applicant took issue with the way in which the Manual was applied in this case (a matter to which I will return), the Applicant took no issue with the existence of the Manual.
2. I now turn to each of the Grounds of Review, noting Grounds 1-6 were abandoned.

Ground 7. The discretion under section 116(1)(b) of the Migration Act 1958 (Cth) miscarried on the basis of one or more of the particulars set out below:

(a) The way the AAT applied this unidentified 'policy' that the applicant had to demonstrate 'a compelling need to remain in Australia' meant that the AAT inaccurately and wrongly applied that policy in a way that placed an unlawful fetter on the unfettered discretion of the AAT;

(b) The was [sic] the AAT applied this unidentified 'policy' that the applicant had to demonstrate whatever happened was due to 'circumstances beyond the applicant's control' meant that the AAT inaccurately and wrongly applied that policy in a way that placed an unlawful fetter on the unfettered discretion of the AAT;

(c) The AAT did not recognise there were two steps in the application of the discretion and did not comply with the correct approach as identified by Sackville J in Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340, ie the AAT did not properly appreciate that the breach of condition did not drive the consideration of the discretion.

1. The Applicant contends that the discretion as to whether to cancel a visa under section 116 of the Act is unfettered. While he accepts that a decisionmaker may take account of guidance contained in a policy such as the Manual, he claims that the Tribunal in the present matter elevated the prominence of the content of the Manual to such an extent that what it did was unlawfully 'fetter' the discretion that it had. In advancing that submission, the Applicant relies on the decision in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641 (Sir Gerard Brennan).
2. The Applicant points to two examples in particular to illustrate the point he seeks to make. At paragraphs [22] and paragraph [28] of its reasons, the Tribunal stated that it was not satisfied the Applicant had 'a compelling need to remain in Australia'. Further, at paragraph [26] of its reasons, the Tribunal did not accept that the circumstances or reasons given by the Applicant for his failure to be enrolled in a course were 'circumstances beyond the applicant's control'. The Applicant submits that the use of these phrases (which are taken from or correlate to phrases from the list of matters set out in the Manual) demonstrate that the Tribunal elevated the importance of the Manual and fettered its otherwise unfettered discretion. The Applicant submits that he never contended that there were circumstances beyond his control which created the circumstances leading to the cancellation of his visa and that he did not make submissions about a compelling need to remain in Australia. The Applicant contends that the Tribunal nevertheless considered and reached conclusions as to these matters (which were not material) and relied on them as part of its chain of reasoning. The Applicant contends that by doing so, the Tribunal treated these items (which derive from the Manual) as essentially mandatory requirements or a checklist. By doing so, the Tribunal fell into error. It truncated the proper exercise of its discretion.
3. The Applicant also made two further submissions. First, the Tribunal did not weigh matters in favour of the visa holder which the terms of the Manual required it to do. Second, he contended that the approach of the Tribunal in this matter contravened the principle that the 'factor which crystallises the discretionary power to cancel does not create a presumption on how that power is exercised': see Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346; [2004] FCAFC 340 (Sackville J). The Applicant submitted that the reasons read as a whole demonstrate that the Tribunal failed to appreciate the visa cancellation decision was a two-stage process.
4. It is convenient to deal with the point above first. I have summarised the reasoning of the Tribunal earlier. A plain reading of the Tribunal's reasons discloses the following. First, it was aware that whether to cancel a visa under section 116 of the Act involves a two-stage process. The first stage is whether a ground for cancellation was made out (paragraphs [10]-[13]) and the second stage is the exercise of the discretion as to whether the visa should be cancelled (paragraphs [14]-[30]). The Tribunal clearly assessed each matter and structured its reasons accordingly. Second, the Tribunal was aware that there were no matters in the Act or the Regulations that must be considered in the exercise of its discretion (paragraph [14]). Third, the Tribunal was aware that it should consider a range of matters including the circumstances of the case and matters raised by the Applicant and it did so. The contravention by the Applicant of condition 8202 only arose in one part of the Tribunal's reasons relating to the exercise of its discretion. That occurred in paragraph [23] of the reasons where the Tribunal notes that the Applicant's period of non-enrolment was a significant breach. That finding occurred in a context where the Tribunal was assessing the Applicant's explanations for the contravention of the visa condition. When the reasons are read fairly and as a whole, in no sense can it be said that the breach of the visa condition drove the exercise of the discretion.
5. The discretion that resides within section 116 of the Act is broad and unfettered. In that context, two matters arise in relation to the way the Applicant put his case. First, the Applicant is critical of the Tribunal because it considered matters he says were not raised by him. First, the Tribunal has a broad discretion. It is the nature of a broad discretion that the Tribunal is not limited to considering matters raised by an applicant. It can consider other matters of relevance including matters in the Manual. Secondly, the Applicant's criticism of the Tribunal that it considered matters not raised by him is in substance a submission that the Tribunal has taken into account irrelevant considerations in reaching its decision. That contention so raised by them, however, does not sit easily with what the Applicant says is his primary position, which is that the discretion of the Tribunal is broad and unfettered.
6. The Tribunal in this case considered matters set out in the Manual. It is not the case, however, that the Tribunal has slavishly followed the Manual, or elevated its importance to such an extent that it has applied it unthinkingly and without regard to the circumstances of the case before it. Two examples make the point. The Manual relevantly sets out nine matters that decision-makers may take into account. The Tribunal has not had regard to all nine of those matters, only the matters apparently relevant to the case before it. For example, it has not taken into account the Applicant's past and present behaviour toward the Department (which the Manual refers to), presumably because it was not relevant to the circumstances of the case before it. It has not taken into account whether there are family members that could be affected by the cancellation.
7. I next turn to the Applicant's submission that the Tribunal at [22] of its reasons required him to demonstrate a compelling need to remain in Australia, or that the Tribunal made a finding about this matter which was not raised by him. The Tribunal's finding on this point needs to be read in the context of the reasons as a whole. It was the Applicant's case that he wished to remain in Australia to complete a second master's degree. The Tribunal from paragraph [18] onwards embarked upon a consideration of the Applicant's history of study and queried his need to obtain two master's degrees, including by reference to evidence provided by the Applicant in respect of the job market in Pakistan. At [21] of its reasons, the Tribunal made, inter alia, two findings. The Tribunal accepted that multiple degree holders might obtain better opportunities in Pakistan and remuneration packages in Pakistan. The Tribunal did not accept, however, that in the context of the case before it, that an additional master's degree would significantly enhance the Applicant's career or remuneration prospects. These factual findings were relevant and were made with respect to the Applicant's case as he advanced it. They are not factual findings made by reference to the content of the Manual. This is evidence of the Tribunal clearly engaging with the Applicant's case.
8. The findings made by the Tribunal in paragraph [21] then inform the conclusion at paragraph [22] of the reasons of the Tribunal. It is important to observe that, in addition to the finding that the Applicant seeks to impugn in paragraph [22], the Tribunal made a further observation in paragraph [22] that the Applicant had not provided convincing evidence that an additional master's degree 'would enhance the applicant's future employment prospects in Pakistan such as to justify the expense and time involved'. This observation is important for two reasons. First, it is demonstrative, again, of the Tribunal engaging with the evidence and the Applicant's case. Secondly, however, it is directly dealing with the Applicant's wish to remain in Australia.
9. All of the findings above taken together then inform the conclusion in paragraph [22] that the Tribunal was not satisfied there is a compelling need for the Applicant to remain in Australia. Even this finding is couched in terms of the Applicant's case as advanced with the Tribunal, noting the conclusion has been reached in circumstances where the Applicant already holds qualifications.
10. It is apparent when all of the above is considered that the Tribunal was doing at least two things. First, it was engaging with the Applicant's case and his need to remain in Australia as advanced by him. Second, it took into account the guidance contained in the Manual. It is not the case that the Tribunal simply applied the Manual in a way which fettered its overarching discretion.
11. There is then the Applicant's submission that he did not argue before the Tribunal that there were circumstances beyond his control giving rise to the ground for the cancellation of the visa. Again, in assessing this submission, context is important. In considering the explanation for the breach of condition 8202, the Tribunal took into account the explanation given by the Applicant. That explanation was that his father had a cancer diagnosis, that he had sought additional funding from relatives but had been unable to obtain that funding and that (among other things) he would feel a failure if he returned to Pakistan without another master's degree.
12. The Applicant clearly wanted his visa restored and wanted the Tribunal to consider his circumstances. The Tribunal clearly did consider his circumstances. It considered the hardship faced or likely to be faced by the Applicant as raised by him. Hardship also happens to be a factor set out in the Manual. The Tribunal's finding thus deals with matters raised by the Applicant and a matter to which the Manual directs attention. It is artificial to portray this reasoning as the Tribunal responding only to the Manual. The Tribunal has a broad discretion and is entitled to make findings relevant to the exercise of that discretion in the circumstances of the case. It did so here. No error is apparent.
13. For all of the above reasons, Ground 7 should be dismissed.

Ground 8. The AAT decision did not meet the standards set out in paragraphs [24], [25] and [27] Plaintiff M1 v Minister for Home Affairs [2022] HCA 17.

Particulars

(a) The applicant carefully and fully described the reason for the breach of condition which was his father becoming seriously ill and therefore being unable to continue to financially support the applicant and further that the father's deteriorating health caused the applicant serious psychological stress.

(b) the AAT did not properly evaluate this material factor in assessing the exercise of the discretion and therefore it improperly applied its discretion.

1. The Applicant contends that the Tribunal failed to properly evaluate his case in exercising its discretion, including the reasons why he breached condition 8202. He puts the case in various ways, including as a failure to properly evaluate his representations in the sense described in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24]- [25] and also in the sense described by Steward J in Trung Tien Nguyen & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (High Court of Australia, Steward J, 22 July 2022) 9. In support of the submissions, he contends that the Tribunal failed, among other things, to make proper findings of fact about the illness suffered by the Applicant's father and its effect on his inability to complete his studies, and the failure to make factual findings on the financial assistance that had been offered to him from a relative in the United States.
2. The Tribunal clearly considered and weighed the evidence given by the Applicant in relation to his father's health and the impact it had on his study: see the reasons of the Tribunal at paragraphs [15]-[16] and [24]-[26]. See also my reasons earlier relating to findings made by the Tribunal in relation to the Applicant's claims of hardship and his explanation for the breach of condition 8202. The Tribunal expressly considered and weighed the offer of financial support made by the Applicant's relative: see paragraphs [16]-[17] and [25]. Indeed, it is apparent from paragraph [25] of the reasons of the Tribunal that the Tribunal accepted what the Applicant put to it. In weighing all the matters raised by the Applicant, the Tribunal noted that the emotional and psychological hardship he suffered because of his father's illness would be alleviated by his return to Pakistan. The Tribunal also noted at [25] that the stress he suffered in Australia 'without financial support apart from a guarantee from a distant relative who lives in the USA' (emphasis added) would be alleviated by his return to his family in Pakistan. The Tribunal thus engaged with the Applicant's case, considered relevant facts and reached a conclusion. The Tribunal plainly had regard to all relevant matters including those raised by the Applicant and evaluated properly the matters raised by him in exercising its discretion.
3. For all of the above reasons, Ground 8 must be dismissed.

1. The Applicant has been entirely unsuccessful. The Minister seeks costs fixed in the amount of $7,467. This is the amount fixed under Schedule 1, Part 3, Division 1, Item 3 to the Federal Circuit Court Rules 2001 (Cth) (being the rules that existed at the time the proceeding was commenced). In circumstances where the Applicant has been unsuccessful, I will award costs to the Minister as sought, fixed in the amount set in accordance with the scale.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.