Al Mawla v Minister for Immigration and Citizenship

116 of the Migration Act 1958 (Cth);

1. The respondent pay the applicant's reasonable costs and disbursements, of and incidental to the application for review, to be agreed, and if not agreed, to be assessed; and
2. Liberty to apply.

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 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. The applicant seeks judicial review of a decision of a delegate of the respondent (Minister) made 21 December 2025 to cancel the applicant's Student (Subclass 500) visa (visa) pursuant to s 116 of the Migration Act 1958 (Cth) (Act).

1. The applicant is a citizen of Lebanon. He is now 24 years of age. He first arrived in Australia in June 2022 to study on a full-time basis for a Diploma of Engineering and then a Bachelor of Engineering Degree at Deakin University.
2. On 3 August 2022, the applicant was granted the visa.
3. The applicant completed the Diploma of Engineering in June 2023 and commenced the Bachelor Degree course in July 2023.
4. In January 2025, the applicant's enrolment in the Bachelor Degree course was cancelled by Deakin University for the non-payment of fees. The applicant first discovered that his enrolment had been cancelled on about 8 January 2025. He then took steps to re-enrol for the partially completed course but for reasons that will be explained, faced considerable difficulty in doing so.
5. On 20 December 2025, the applicant departed Australia enroute to Thailand for a holiday with his uncle and his family. The applicant's uncle is an Australian citizen, as are members of his immediate family. The applicant's uncle sponsors his stay in Australia as a student. During a stopover in Denpasar, it was discovered that the applicant did not have a visa to enter Thailand as a visitor. The applicant was not permitted to board the flight from Denpasar to Phuket. The applicant says that his uncle then purchased a return flight for him, from Denpasar to Brisbane.
6. The applicant arrived in Brisbane at about 5:50am on 21 December 2025. Upon arrival, he was detained and interviewed in immigration clearance. At 11:01am on 21 December 2025, the applicant was given a Notice of Intention to Consider Cancellation (NOICC) of the visa. The applicant was asked to respond to the NOICC at an interview to be held fourteen minutes later at 11:15am that day. The applicant elected to do so without representation and was formally interviewed by a delegate of the Minister.
7. At 1:10pm on 21 December 2025, the applicant was given a decision in writing by a delegate of the Minister cancelling the visa pursuant to s 116 of the Act (Decision). The applicant was taken into immigration detention and informed on 22 December 2025 that he would be returned to Lebanon at 7:00pm the following day (23 December 2025).
8. On 23 December 2025, the applicant filed an application for judicial review of the Decision, together with an application in a proceeding seeking urgent injunctive relief preventing his removal from Australia.
9. On 23 December 2025, the application for urgent injunctive relief was heard by me as duty judge via video link. The injunction was granted and directions made for the final hearing of the application for judicial review, again on an urgent basis. I delivered ex temporae reasons for granting the injunction, sought to the effect that I was satisfied that there was a serious question be tried and the balance of convenience was in favour of preserving the status quo pending a final hearing regarding the validity of the Decision.
10. The final hearing of the application for judicial review was heard via video link on 7 January 2026. Mr Aleksov of counsel appeared for the applicant. Mr Byrnes of counsel appeared for the Minister.
11. On 7 January 2026, the Court allowed the application for judicial review and ordered that the Decision be quashed. The Court also ordered the Minister pay the applicant's reasonable costs and disbursements of and incidental to the application for judicial review, to be agreed, and if not agreed, to be assessed.
12. At the time of making final orders on the application for judicial review, I delivered short oral reasons and indicated that written reasons for judgment would be delivered as soon as reasonably practicable given the Court Summer Recess.
13. These are the reasons for granting the final relief sought by the applicant in the application for judicial review.

1. In the NOICC, the delegate identified that the applicant was in breach of condition 8202 of the Migration Regulations 1994 (Cth) (Regulations), which was a condition of his visa (reg 500.611 of the Regulations). Condition 8202(2) requires the holder of a student visa to be enrolled in a fulltime registered course of study (Sch 8 of the Regulations). Attached to the NOICC was a PRISMS record indicating that the applicant's enrolment at Deakin University was cancelled for non-payment of fees on 3 January 2025.
2. In the Decision record which was produced in an affidavit sworn by the applicant on 23 December 2025, the delegate of the Minister summarised the grounds that the applicant identified as reasons for not cancelling the visa as follows:

The visa holder stated:

- The termination of his studies was not fair as he received his tuition bill in December 2024 and it should be at least 20 days from the due date before termination occurs, they did not take into account the holidays and sent the termination letter on 03/01/2025.

- All the efforts put into the re-enrolment over the past year - none of the delays were my fault.

1. The delegate summarised the applicant's evidence in section 7 of the written decision record and repeated verbatim the summary recorded immediately above. The delegate identified and found that grounds to cancel the visa existed because the applicant/visa holder had not complied with visa condition 8202(2)(a) of the Regulations.
2. When considering exercising the discretion not to cancel, the delegate considered the evidence of the applicant as recorded and the applicant's desire to return to Australia to complete his course of study. The delegate did not consider this to be a compelling need to travel to or remain in Australia and concluded '...I give this consideration little weight against the cancellation' (Section 9 of the Decision).
3. The delegate went on to consider compliance with visa conditions as part of the exercise of discretion not to cancel. The delegate found that the applicant did not have a current Confirmation of Enrolment (CoE) and the acknowledgment by the applicant that he had not studied since January 2025. The delegate considered the failure to be enrolled to be 'a significant matter and I therefore give significant weight towards visa cancellation' (Section 9.2 of the Decision).
4. In section 9.3 of the Decision, the delegate considered hardship to the applicant and stated:

The visa holder stated that after all the efforts in 2025, the visa holder wants to continue his studies and finish his degree in Australia

I also acknowledge there may be other hardships that the visa holder has not raised.

Therefore, I give this consideration some weight against cancelling.

1. In section 9.4 of the Decision, the delegate considered if any extenuating circumstances exist that were beyond the visa holder's control that led to the ground existing. The delegate said:

The circumstances arose when the visa holder did not arrange for his tuition payment in time.

The visa holder stated that the termination of his studies was not fair as he received his tuition bill in December 2024 and it should be at least 20 days from the due date before termination occurs, they did not take into account the holidays and sent the termination letter on 03/01/2025.

I acknowledge the visa holder's response, however timely tuition payment is the visa holder's responsibility and as the tuition fee has not been paid by the provided due date I find the circumstance is not beyond the visa holder's control.

The visa holder stated that after not being able to enrol in semester 1 and 2, he has been getting experience in the related field as his studies and getting practical experience.

I acknowledge the visa holder's response, however all efforts should be taken to comply with the conditions of his visa.

Therefore, I give these considerations significant weight towards visa cancellation.

1. It is the reasoning in this section of the Decision that has led the Court to find that the delegate made a material jurisdictional error by failing to understand and consider the applicant's evidence and claims.
2. The delegate acknowledged in section 9.5 of the Decision that the applicant cooperated with the process and was generally forthcoming during questioning and interview. This was given 'some weight' against cancellation. In section 10 of the Decision, the delegate simply ticked generic legal consequences relating to cancellation and inserted the word 'some' into the section as to the weight given to these matters against cancellation.

1. The applicant commenced the application for judicial review by originating application filed on 23 December 2025. In that application, the applicant identified the substantive grounds of review as follows:

1. The delegate failed to consider important evidence in opposition to cancellation, being that the applicant had been taking steps to re-enrol in his course.

2. The decision of the delegate is affected by procedural unfairness, in that it was unfair to conduct the interview after the applicant had complained of being sleep deprived.

1. The application for final relief was supported by an affidavit sworn by the applicant on 23 December 2025 that annexed a copy of the NOICC and the Decision. Also annexed to that affidavit were emails from Deakin University to the applicant through January and February 2025 and thereafter, where the applicant sought immediate readmission in his course of study. In an email dated 10 January 2025, the University confirmed that the applicant was not required to pay tuition fees for Trimester three for 2024 or a 're-instatement fee' because he had been 'Withdrawn early'. The applicant was invited to apply for readmission but would be given recognition for prior learning. One of the emails dated 27 February 2025 explained to the applicant that he could not apply for readmission to study in semester one of 2025 because his course had been 'pipelined'. This meant that the course could no longer be offered and the applicant was required to complete a new course map and course of study, including undertaking an assessment of academic performance. The applicant then explained on oath a series of unfortunate bureaucratic events and requirements that meant he could not enrol for 'Trimester one' in 2025, despite his best efforts to do so. This correspondence was provided to the delegate before the interview and the NOICC.
2. The applicant's evidence in his affidavit, sworn 23 December 2025, then explained that he was confronted by further frustrating events by the University before the commencement of Trimester two. This included his application being rejected because the end date for the new course exceeded the expiry date of the visa. The applicant annexed further correspondence from the University in June and August 2025 regarding enrolment in his course of study to commence in Trimester two. On 21 August 2025, the applicant was told by the University that the next available option for re-enrolment would be Trimester one in 2026. This was because 'Unfortunately, there is no Trimester 3 intake for your course so your next available option to apply for re-admission would be Trimester 1 2026'.
3. On 2 October 2025, the applicant wrote an email to the University politely but assertively identifying numerous administrative and bureaucratic errors on their part that meant that his application for readmission should have been completed, and that he now required immediate attention and review.
4. The applicant said in his interviews with the delegate (and according to his affidavit evidence, before that, in interviews with officers of Border Force) that this correspondence was produced from his phone as best he could in the circumstances and given to the delegate. The applicant also said he received a further letter from the University in which he received an offer to pay the costs of obtaining a new visa or an extension to the visa.
5. The solicitor for the applicant, Mr Grillo, also affirmed an affidavit on 31 December 2025 that annexed a transcript of the recorded interviews between the delegate and the applicant on 21 December 2025. No objection was taken by the Minister to the accuracy of the transcript. The transcript reveals that the applicant explained to the delegate that he believed he had received approval from Deakin University for a new CoE, which he expected to receive shortly and once he obtained an extension of the expiry of his visa. The applicant said that the University had offered to pay the cost of seeking a new visa or extended visa, which the applicant accepted and signed. The transcript also reveals a level of confusion by the delegate as to the course content, re-enrolment and readmission process which the applicant was trying his best to explain without access to all available documents or a link to the University portal. The delegate appears to have been focusing on the non-payment of fees by the applicant which led to cancellation of the applicant's course, whereas the applicant was seeking to explain that he had been trying as best he could to obtain readmission and that the University's processes had frustrated all reasonable attempts to do so.
6. At the hearing on 7 January 2026, counsel for the applicant and counsel for the Minister relied on outlines of written submissions filed in accordance with the orders I made on 23 December 2025. The Minister did not seek to rely on any affidavit evidence and did not object to the tender of the affidavits relied on by the applicant and referred to above.

1. The applicant did not seek to rely on the second ground of review identified in the application for judicial review and proceeded only on the first ground, namely that the delegate erred by failing to consider and understand the applicant's evidence. It was submitted that in assessing whether to exercise the discretion not to cancel favourably, the delegate was obliged to consider all of the important evidence advanced by the applicant and not just the failure to pay tuition fees (Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24]- [26] (Plaintiff M1/2021) and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111]- [112] per Robertson J).
2. The repeated references by the delegate in the Decision to the applicant's evidence that 'none of the delays were my fault' did not actively engage with the totality of the applicant's evidence about why he was unable to obtain readmission due to procedures and changes by the University. To focus simply on the evidence that 'all the efforts put into re-enrolment over the past year' was improperly generalised, and thus faulty. In fact, the applicant's attempts to obtain readmission were 'stymied by administrative issues' which was a fact not squarely addressed by the delegate. The delegate did not refer to this evidence in the Decision or make any finding as to whether the claim was credible or should be given weight.
3. Put simply, the delegate misunderstood the applicant's evidence and thus failed to consider the evidence as actually put on the explanation for non-enrolment. This was a material jurisdictional error because another delegate properly considering the evidence might realistically give the applicant a second chance as a matter of discretion. It was submitted that the Decision should be quashed by certiorari with costs.

1. In the written submissions filed on behalf of the Minister dated 5 January 2026, counsel for the Minister set out the relevant legal principles upon which a delegate of the Minister may cancel a visa under s 116 of the Act. In oral submissions, counsel also relied on the applicant's evidence as recorded in the transcript of interview at pages 6 and 28 regarding the non-payment of tuition fees. In particular, an open admission that the applicant apparently thought he had a further twenty days after the due date for payment of fees before the University would take any steps to terminate his enrolment. Therefore, the applicant was the author of his own misfortune and there could be no dispute that there were grounds for cancellation of the visa because the applicant had not been enrolled in a registered course of study since 3 January 2025. The applicant was in breach of the conditions of his visa, and this enlivened the jurisdiction to cancel.
2. Counsel for the Minister also submitted that a finding that a decision-maker has not engaged in an active intellectual process should not be lightly made and must be supported by clear evidence and that the applicant bears the onus of proof (KXXH v Minister for Immigration, citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 at [45]- [54] and Plaintiff M1/2021 at [22]-[27]). Further, an inference that a matter has not been considered should not be drawn where an issue has been identified at some point in the decision-makers reasoning (Applicant WAEE v Minister for immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]- [47]). It is not necessary to refer to every piece of evidence and every contention made by the applicant in the reasons for decision and decision-makers do not need to record every aspect of their thought processes and record every finding made (Campbell-Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 153 at [45] and Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 188 at [36]).
3. Further, merely because a decision-maker could have set out particular things does not mean that the decision-maker did not read identify, understand and evaluate the applicant's claims (DTB21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 624 at [41] per Collier J).
4. It was submitted that the delegate did consider the applicant's evidence regarding his attempts to re-enrol, and this could be found in the use by the delegate of the references to the applicant's evidence that 'none of the delays were my fault'. This incorporated that the delays in obtaining re-enrolment were the fault of someone other than the applicant, including the University. The delegate also engaged with the applicant's evidence in item 7 of the Decision where the delegate acknowledged this aspect of the applicant's evidence but concluded that the applicant spent a significant time onshore since his last CoE was cancelled and therefore grounds for cancellation exist. Item 8 of the Decision also identified the applicant's evidence that he was not at fault for breaching the conditions of his visa.
5. In item 9.4 of the Decision, the delegate also considered the applicant's evidence regarding re-enrolment where the applicant is recorded that the termination of his studies was 'not fair'. Nevertheless, the delegate found that the applicant had not paid fees by the due date, which was a circumstance that was not beyond the applicant's control. The delegate did not have to specifically address all aspects of the applicant's evidence and was not in error to refer to the generality of the evidence rather than specific aspects of the evidence.
6. It was also submitted that any error by the delegate was not material given the 'backward-looking inquiry for materiality' (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [10]) (LPDT). It was submitted that whilst the threshold for materiality is not demanding, here the responsibility for payment of tuition fees was that of the applicant. Another decision-maker, when faced with the same circumstances, would not realistically have reached a materially different result.

1. This Court has jurisdiction to entertain this application under s 476 of the Act because the Decision was a migration decision of a delegate of the Minister to cancel the visa, made when the applicant 'non-citizen' was in immigration clearance. Therefore, it is not a reviewable migration decision within the meaning of s 338 of the Act for which the Administrative Review Tribunal has jurisdiction to conduct a review (s 338(3) of the Act). The task of the Court is to review the Decision for material jurisdictional error. This involves asking two questions: has an error occurred; and if so, was the error material (LPDT at [9]).
2. The categories of jurisdictional error are not closed and can take many different forms, however errors can 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 (LPDT at [3]).
3. Here, the error identified and relied on by the applicant was that the decision-maker misunderstood the applicant's evidence and failed to properly consider the applicant's evidence, when considering whether to exercise a discretion not to cancel the applicant's visa.
4. In Plaintiff M1/2021 at [24]-[27], Kiefel CJ, Keane, Gordon and Steward JJ stated the principles upon which a court undertaking judicial review of an administrative decision should approach consideration of evidence and material claims. The Court said:

[24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) [1995] FCAFC 1726; 57 FCR 451 at 495], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged 'to make actual findings of fact as an adjudication of all material claims' made by a former visa holder.

[25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

[26] Labels like 'active intellectual process' and 'proper, genuine and realistic consideration' must be understood in their proper context. These formulas have the danger of creating 'a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised'. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [(1986) 162 CLR 24 at 40; see also 30, 71], '[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind'. The court does not substitute its decision for that of an administrative decision-maker.

[27] None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

1. On this occasion, I am satisfied that the delegate erred by failing to understand the applicant's evidence regarding the circumstances in which his enrolment came to be cancelled by Deakin University and, more importantly, his attempts to promptly obtain readmission to his chosen course of study. The decision-maker here ignored aspects of the applicant's evidence, overlooked and misunderstood relevant facts and materials presented by the applicant and misunderstood the case being made by the visa holder. That error was also material because there was a realistic possibility that the decision made could (as opposed to 'would') be different had there been no error (LPDT at [14]).
2. The delegate erred because when considering the evidence of the applicant, the delegate misunderstood or did not clearly address the applicant's claim that once his course was terminated by the University, he was required to apply for readmission to a different course because his previous course had been 'pipelined'. This meant that his course was no longer offered by the University and the applicant was required to commence a new course, the entry point (or start date) to which was not accessible to the applicant because of bureaucratic requirements and administrative errors by the University. The applicant's claims were not limited to evidence that he was 'not at fault' for not being enrolled in a course of study during 2025, but rather he was precluded from readmission by matters beyond his control. This was a relevant claim to the exercise of the delegate's discretion which the delegate does not appear to have engaged with either during the interview, when giving the applicant the NOICC, or when making the Decision.
3. It is also unclear from the evidence and Decision whether the delegate properly understood or addressed the reason for termination of the applicant's course of study. This was in part due to the circumstances in which the decision to cancel was made. The evidence of the applicant was confusing as to why the University gave notice terminating his course and there was no clear evidence that the applicant did not pay his tuition fees by the due date for payment. The PRISMS record relied by the delegate says that the applicant's enrolment in a Bachelor of Civil Engineering (Honours) course was cancelled by the University for non-payment of fees on 3 January 2025 but also says that it was cancelled for 'non-commencement of studies' on the same date. The delegate did not engage with the applicant's explanation of what occurred in his dealings with the University in January and February 2025, or his evidence that at the time of cancellation, he was undertaking an online component of his course during the summer trimester.
4. The Decision reflects that the delegate was focused on the non-payment of fees as the only basis of cancellation of the applicant's enrolment and that fact alone was the catalyst for his subsequent breach of the condition of his visa. The delegate did not embrace the more sophisticated explanations and the correspondence produced by the applicant as to what actually happened, and his attempts to re-establish admission to a new course and credit for previous studies, which were in turn hampered by confusion as to the expiry of his visa. Rather, the Decision reflects a conclusion that the applicant simply did not pay his tuition fees, the University cancelled his enrolment and then the applicant idly sat on his hands for twelve months in breach of the condition of his visa. The factual circumstances presented by the applicant were not so simple and the delegate did not expressly reject them as lacking credibility. It was incumbent on the delegate to give due consideration to this explanation when exercising the residual discretion not to cancel. The Decision, the NOICC and the transcript of the interviews with the applicant do not reflect a due consideration of the material facts presented by the applicant, or a clear understanding of the applicant's evidence.
5. Further, there appears to have been no consideration by the delegate or weight given when making the Decision to the applicant's age, the circumstances he was placed under when interviewed, his willingness to cooperate in difficult circumstances and the complexity of the circumstances that he was trying to explain. Whilst the weight to be given to these factors is a matter entirely for the delegate and is not in the domain of this Court (Plaintiff M1/2021 at [24] and Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]), the Decision does not reflect any satisfactory consideration of these relevant facts when considering the delegate's discretion. The fact that the applicant had completed his Diploma in accordance with the terms of his visa, had apparently undertaken four Trimesters of his Bachelor Degree and otherwise complied with the course of study for which he was granted the visa in a timely manner, were not expressly referred to in the reasons, if they were in fact considered.
6. The error of the delegate was also material. When applying the backward-looking test identified by the High Court in LPDT and the undemanding threshold of materiality, the circumstances of this case are such that there is a realistic possibility that another delegate with the benefit of more time, further evidence and consideration could reach a different conclusion on whether to cancel the visa.

1. The Decision should be quashed and a writ of certiorari issued. The effect of which should be that the applicant's visa is no longer cancelled, and he should be released from detention. The injunction ordered on 23 December 2025 will lapse and no further or other orders appear necessary. However, I have granted liberty to apply, should any further relief be required.

1. Costs should follow the event. Mr Alexsov for the applicant submitted that given the urgency of this case and the time of year at which it was heard, it may not be appropriate to fix the costs and disbursements to be recovered in accordance with the scale in the Rules of Court for migration proceedings. He asked that the applicant's costs not be fixed and that they be assessed if they cannot be agreed with the Minister. This is an appropriate course in this case.

1. The orders made following the conclusion of the hearing on 7 January 2026 were:
   1. The name of the first respondent be amended to 'Minister for Immigration and Citizenship';
   2. A writ in the nature of certiorari issue quashing the decision of the delegate of the respondent made 21 December 2025 to cancel the applicant's visa pursuant to s 116 of the Migration Act 1958 (Cth);
   3. The respondent pay the applicant's reasonable costs and disbursements, of and incidental to the application for review, to be agreed, and if not agreed, to be assessed; and
   4. Liberty to apply.
2. Order one is to be amended under the slip rule to delete reference to the 'first' respondent and to substitute reference to the 'respondent' (singular).

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.