Khan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 805

1. On 22 November 2016, the applicant's visa was cancelled by a delegate of the first respondent (the "Minister") (CB 18-23). The delegate was satisfied that there was a ground for cancelling the applicant's visa and that the grounds for cancelling the applicant's visa outweighed the grounds for not cancelling it (CB 22).
2. On 30 November 2016, the applicant sought review of the delegate's decision by the Tribunal (CB 24-34). With his review application, the applicant provided a copy of the delegate's decision (CB 35-40), a letter and medical information in relation to the applicant's mother (CB 41-53), a letter from the applicant's father (CB 54) and bank information, a residential tenancy agreement and utilities for the applicant (CB 55-68).
3. On or about 10 November 2017, the Tribunal obtained a copy of the applicant's PRISMS records (CB 74).
4. On 23 November 2017, the Tribunal invited the applicant (via email) to attend a hearing before it scheduled for 8 January 2018 (CB 78-80).
5. On 4 December 2017, the applicant wrote to the Tribunal (by email) advising that he was "not able to attend [the] hearing on 8 January 2018". He provided a copy of the completed "response to hearing invitation form" and a letter from his Clinical Psychologist dated 30 November 2017 (CB 81-84).
6. On 20 December 2017, the applicant phoned the Tribunal regarding his request for a postponement of the hearing and was told that the request "had been passed onto the Member for their consideration" (CB 85).
7. On 4 January 2018, the Tribunal agreed to postpone the applicant's Tribunal hearing until 27 February 2018. The applicant was notified of that postponement by letter sent via email (CB 86-88).
8. The Tribunal also contacted the applicant by telephone that same day (being on 4 January 2018) (CB 89).
9. On 17 January 2018, the applicant returned a completed "response to hearing invitation form" to the Tribunal in which he confirmed that he would attend the hearing scheduled for 27 February 2018 (CB 90-92).
10. On 12 February 2018, the Tribunal wrote to the applicant (via email) and advised that, "[d]ue to circumstances beyond [their] control, the Member [was] unable to conduct the hearing" on the scheduled hearing date and the hearing had been rescheduled to 6 March 2018 (CB 93-95).
11. On 20 February 2018, the applicant returned a completed "response to hearing invitation form" to the Tribunal in which he confirmed that he would attend the rescheduled hearing (CB 96-98).
12. On 6 March 2018, the applicant appeared at the Tribunal hearing to give evidence and present arguments in support of his review application (CB 99-102). The applicant's friend also attended the Tribunal hearing as a witness (CB 99).
13. On 26 June 2018, the Tribunal affirmed the delegate's decision cancelling the applicant's visa (CB 106-114).
14. On 23 July 2018, the applicant applied to the then Federal Circuit Court of Australia (the "FCCA") for judicial review of the Tribunal's decision (CB 115-120). The applicant also filed an affidavit in support of that judicial review application which essentially repeated his ground of review and annexed a copy of the Tribunal's decision (CB 121-132).

1. The application for judicial review is brought pursuant to s 476 of the Act. In order to succeed before this Court, the applicant must demonstrate that the Tribunal fell into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. The Tribunal's decision is nine pages long and spans 59 paragraphs (CB 106-114). The final page contains extracts of relevant legislative provisions (CB 114).
3. The Tribunal began by explaining that the applicant had sought review of a decision made by a delegate of the Minister cancelling his visa. The Tribunal detailed that the applicant's visa was cancelled because the delegate found that the applicant had not complied with a condition of his visa. The Tribunal confirmed that the applicant had appeared at a hearing before it on 6 March 2018 to give evidence and present arguments (and that his friend had also appeared to give evidence at that hearing) (at [1]-[4]).
4. The Tribunal identified that the issue before it was whether the applicant had breached Condition 8202 in Schedule 8 of the Regulations and, if so, whether the applicant's visa should be cancelled pursuant to s 116(1) of the Act. The Tribunal set out the requirements under Condition 8202 in Schedule 2 of the Regulations and explained that the applicant's visa in this case was cancelled on the basis that the applicant was not enrolled in a registered course of study. Further, the applicant was sent a NOICC on 2 November 2016 (at [6]-[8]).
5. The Tribunal acknowledged that the applicant had provided a response to the NOICC in which he had confirmed that the grounds for cancellation existed, that he had completed a Certificate III in Automotive Mechanical Technology and a Certificate IV in Business (leading to a Diploma). The Tribunal noted that the applicant also said that his friends and brother suggested a Bachelor of Business (Accounting). However, in May 2015, the applicant's brother advised that their mother was very sick and the applicant had planned to travel home but his brother told him to concentrate on his studies. His mother had an operation in August 2015 and the applicant was "very concerned and worried". The applicant claimed that he was "constantly depressed" and that his psychologist suggested that he rest. The applicant also claimed that he had tried to defer his studies but that the college required him to pay the balance of fees for the semester (which he could not do as his family was facing financial stress). He again went to the college to seek a deferral in October 2015 but they refused his request (at [9]-[11]).
6. The Tribunal confirmed that the applicant's visa had been cancelled on 22 November 2016 and that the applicant had provided a copy of the delegate's decision with his review application. The Tribunal also noted that the applicant had appeared at a hearing before it and had confirmed at that hearing that "he was not enrolled in a registered course of study from August 2015" because his mother had medical issues and "from that time he was upset and depressed". The applicant explained to the Tribunal that, when he learnt of his mother's health situation (in August 2015), he was still enrolled but struggled to concentrate on his studies. He confirmed that from October 2015 his enrolment in a registered course of study ceased and he did not enrol in the second or subsequent semesters of his course. Further, the applicant confirmed that he had not been enrolled in a registered course for over 12 months when his visa was cancelled and that he had failed his first semester (at [12]-[14]).
7. On the evidence before it, the Tribunal was satisfied that the applicant was not enrolled in a registered course of study and, as such, had not complied with Condition 8202 in Schedule 8 of the Regulations. The Tribunal identified that it was then required to consider whether to exercise its discretion to cancel the applicant's visa and noted that there were no matters specified in the Act or Regulations that were required to be considered in exercising that discretion. The Tribunal confirmed that it had had regard to matters raised by the applicant as to why his visa should not be cancelled, as well as the policy and guidelines contained in the Departments Procedures and Advice Manual ("PAM3") (at [15]-[17]).
8. The Tribunal considered the purpose of the applicant's travel and stay in Australia and noted that the applicant came to Australia in 2010 to study but experienced problems "mid-way through 2015". The Tribunal gave some weight to the fact that the applicant appeared to have a genuine interest and commitment to his studies up until that point, however, that weight did not outweigh the fact that the applicant had significantly breached a condition of his visa by not being enrolled in a registered course of study for a substantial period of time (at [18]-[19]).
9. The Tribunal had regard to the applicant's evidence (given at the hearing before it) when considering the circumstances in which the ground of cancellation arose and whether the circumstances were beyond the applicant's control (at [20]-[40]), as follows. The Tribunal:

(a) referenced the applicant's evidence regarding his family background and circumstances, his return travel to his home country, his mother's illness, his family's financial situation, the applicant's employment status and his mental health. The Tribunal noted the applicant's evidence that his inability to pay for his fees and the detrimental effect that his mother's illness had on him were the two key issues which led to him not being enrolled (at [20]-[35]);

(b) explained that the applicant gave evidence about his mental health and that he had been diagnosed with anxiety and depression in September and October 2015, was not prescribed any medication but was suggested rest and cognitive therapies. The Tribunal confirmed that it had regard to the letter from the applicant's psychologist (dated 30 November 2017) and noted that the applicant's evidence regarding his period of treatment was inconsistent with the psychologist's evidence (at [36]-[38]);

(c) gave some weight to the difficulties and stress that an ill parent may have had on the applicant when he was in a different country and gave minimal weight to the applicant's explanation that he could not pay his fees because his father had used his savings to pay for his mother's operation. The Tribunal considered that the applicant "was not required to remain in Australia and could have easily elected to return to Pakistan whilst his mother was sick ... and he could not afford the [course] fees". The Tribunal noted that the applicant "thought the situation would rectify itself", however, given that the applicant had the option of leaving and remained in Australia, the Tribunal gave no weight to the applicant's explanation in that regard (at [39]); and

(d) gave some weight to the applicant's claimed depression in favour of the applicant but, noting the limited evidence available from the applicant and his psychologist, the Tribunal considered that the applicant's depression was manageable and that "he was not so unwell that his actions and psychological state were out of his control" (at [40]).

1. The Tribunal then considered the applicant's evidence that any cancellation would cause him emotional hardship as he would "be seen as a failure". The Tribunal also acknowledged the applicant's evidence that his family would "face financial hardship as his father [was] now retired and they [did] not have a source of income". The Tribunal accepted that a cancellation would cause some hardship to the applicant and his family and also appreciated that it would be disappointing for them. However, the Tribunal did not accept that the considerations put forward by the applicant outweighed the severity of the breach in order not to cancel the visa (at [41]-[43]).
2. The Tribunal gave some weight to the applicant's evidence that he had never breached any laws in Australia, had never worked beyond his visa restrictions and was a genuine and honest student. However, the Tribunal found that it did not outweigh the severity of the breach (at [45]).
3. The Tribunal noted that the applicant had cooperated with the Department and Tribunal and had responded to the NOICC in a timely manner. However, the Tribunal found that this was "expected" of visa applicants and gave the applicant's conduct in this regard minimal weight "given the length of the breach and the applicant's lack of communication with the Department" during that period (at [46]).
4. The Tribunal explained that the applicant had not raised concerns regarding any mandatory legal consequences of a visa cancellation and stated that it appeared unlikely that the applicant would be detained if the cancellation arose. The Tribunal therefore gave it minimal weight. The Tribunal also noted that there was no evidence before it to suggest that the applicant had applied for protection or that it should consider whether any international obligations would be breached as a result of cancellation (at [47]-[48]).
5. The Tribunal considered the evidence given by the applicant's friend (as a witness at the Tribunal hearing). In particular, the Tribunal noted that the friend was aware that the applicant had faced financial problems and had paid for the applicant's accommodation and food and had "witness[ed] his situation". The Tribunal acknowledged that the witness's evidence provided "further credibility" to the applicant's claims and did give that evidence some weight. However, the Tribunal found that the applicant's family's financial situation, his mother's operation and the stress it caused and the applicant's mental health issues did not outweigh such a significant breach (at [49]-[55]).
6. The Tribunal explained that the applicant's adherence to his visa conditions was a priority and noted that the applicant had not only breached those conditions, he had done so over a twelve month period and did not seek advice from the Department (or keep them informed). The Tribunal also noted that the applicant was able to maintain employment and was under the care of a psychologist. The Tribunal considered and weighed the applicant's circumstances individually and cumulatively and found that those circumstances did not outweigh the reason to cancel the visa, particularly given the significant period of time in which the breach occurred (at [56]-[57]).
7. Having considered the applicant's circumstances as a whole, the Tribunal concluded that the visa should be cancelled and affirmed the delegate's decision cancelling the applicant's visa (at [58]-[59]).

1. The application for judicial review (filed by the applicant on 23 July 2018) contains one "particularised ground of review", as follows (without alteration):
   1. The Tribunal took account of irrelevant considerations and failed to take account of relevant considerations.

Particulars

• The Tribunal failed to properly exercise its discretion not to cancel the applicant's student visa and failed to have regard to the fact that any breach of condition 8202(2) occurred because of circumstances beyond the applicants control.
• The Tribunal failed to have regard to or give proper and sufficient weight to the fact that the applicants mother was seriously ill in 2015 and that news of his mother's illness adversely effected the applicant, his capacity to attend school and his ability to maintain enrolment in his course of study.
• The Tribunal failed to have regard to or give proper and sufficient weight to the fact that the applicant had been seeing a Psychologist from 2015 to 2017 and failed to give sufficient or proper weight to the Psychologist's report dated 30 November 2017.
• The Tribunal failed to have regard to or give proper and sufficient weight to the fact that the applicants father needed to attend to medical costs associated with his mother's illness and consequently, could not provide the applicant with sufficient funds for him to pay his outstanding school fees in order to maintain his enrolment.
• The Tribunal took account of irrelevant considerations when it stated that it was open to the applicant to return to Pakistan to be with his ill mother when the applicant ascertained that she was seriously ill rather than remaining in Australia.
• The Tribunal failed to have regard to or give proper or sufficient weight to the hardship which the applicant and his family would endure if his visa remained cancelled and the applicant was unable to complete his studies.
• The Tribunal took account of irrelevant considerations and erred at law when it decided to conduct a weight analysis and compare the period of time in which then applicant failed to maintain enrolment with the evidence before it with respect to the circumstances that led to the breach. There is no test that requires the applicant to show that the circumstances that led to the breach of condition 8202 must outweigh the severity of the breach.

1. The applicant also filed an affidavit in support of the judicial review application. That affidavit annexed a copy of the Tribunal's decision, associated notification letters and information sheets.
2. On 11 December 2019, procedural orders were made by Registrar Carlton of the then FCCA giving the applicant an opportunity to file an amended application, any supplementary Court Book and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
3. The applicant appeared before this Court (by video link on 17 February 2025) without legal representation. Mr Rogan O'Shannessy from Mills Oakley (solicitor for the Minister) appeared on behalf of the Minister (also by video link). The Court asked the applicant to confirm that he had received copies of the Court Book and the Minister's written submissions.
4. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 23 July 2018 (the affidavit being taken as read and in evidence at the hearing on 17 February 2025), a Court Book numbering 132 pages (marked as Exhibit 1 at the hearing of this matter) and written submissions filed on behalf of the Minister on 3 February 2025.
5. Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal "did wrong". This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
6. To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

(a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 at [207]- [208];

(e) where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

(f) where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].

1. It was also explained that this Court cannot review the merits of the Tribunal's decision or reinstate the applicant's cancelled visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
2. Against this background, the applicant simply told the Court that he did not "have much to say regarding the [Tribunal's] decision".

1. As noted above, the applicant did not file any written submissions and his oral submissions to this Court did not address the issue of jurisdictional error. Indeed, as explained above, the applicant's only submission to this Court was that he did not have anything to say about the Tribunal's decision.
2. Noting that the applicant was unrepresented, the Court will interpret the applicant's grounds of review as widely as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and will itself review the Tribunal's decision for any possible jurisdictional error.
3. As outlined above, the Tribunal ground of review states that the "Tribunal took account of irrelevant considerations and failed to take account of relevant considerations" (CB 118). That "ground" lists seven "particulars" or instances where the applicant takes issue with aspects of the Tribunal's decision. Whilst not numbered in the judicial review application filed by the applicant, the Court will reference those as particulars one to seven and address each particular in turn.

1. Before addressing the particulars (and noting that they all relate to the Tribunal's consideration of relevant or irrelevant considerations), it is useful to first outline the case law in relation to what amounts to a "relevant consideration" or an "irrelevant consideration".
2. In this regard, the Court notes the summary provided by the Federal Court in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1107 as follows:
   1. A number of grounds of review assert error on the part of the Tribunal by either failing to take into account relevant considerations or taking into account irrelevant considerations. Before considering those and other grounds in more detail, it is convenient to identify the metes and bounds of that kind of alleged error going to the exercise of jurisdiction. It has been commonplace to refer to these two grounds as mandatory relevant considerations and forbidden irrelevant considerations. The addition of the words "mandatory" and "forbidden", is something of a public law tautology, because that concept is built into the meaning of "relevant" and "irrelevant" in a public law sense, as the lengthy quote from Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 in the following paragraph demonstrates. But the deployment of that tautology is a useful way of emphasising that the issue is not one of relevance in the sense used in ordinary parlance, but rather whether a decision-maker is required in the exercise of jurisdiction to have regard to a particular consideration, or required not to have regard to a particular consideration.
   2. One of the most commonly cited, and clearly expressed, explanations of relevant and irrelevant considerations is by Mason J in Peko-Wallsend at 39-41 (omitting only citations and quotes; emphasis in original):

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision... > > (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. ... > > (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision ... A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision ... > > (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned ...

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".

1. It follows that in order to succeed upon a ground of failure to take into account a relevant consideration, or a ground of taking into account an irrelevant consideration, more than an assertion of general relevance or general irrelevance in the evaluative sense is required. That lesser degree of consideration or non-consideration is a matter for the decision-maker, subject to the general requirement to consider claims that are in fact made and submissions that are in fact advanced. For relevant or irrelevant considerations, what must be shown by the express words of the legislative scheme, or some particular feature of it, or by necessary implication, is that the element of compulsion or proscription is present.
2. The considerations that are relevant or irrelevant to a decision made under the Migration Act, in the sense of being mandatory or forbidden, are primarily, perhaps even entirely, determined by reference to that Act (including aspects of Direction 90 because it is made under s 499 of that Act), rather than by the particular facts of the case under consideration: see Applicant M185 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 230 at [8]- [10], and the cases cited and quoted of Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [73]- [74] and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [123] per Allsop J (as the Chief Justice then was, with Moore and Tamberlin JJ agreeing).

27. The now Chief Justice also observed in NADH:

(a) at [10], that reviewable error "by reason of failing to take into account relevant considerations, or taking into account irrelevant considerations, is an error that arises as a matter of law, rather than an error that is centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts" and;

(b) at [11], that the weight to be given to matters regarded as material by a Tribunal is a matter for it to determine.

1. Essentially, in order to establish that a decision-maker had regard to an irrelevant consideration, an applicant must establish that the consideration in question is extraneous when viewed in light of the provisions, subject-matter, scope or purpose of the relevant statutory scheme: Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 ("Neat Domestic Trading") at [20] and Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ("Peko-Wallsend").
2. It is important to remember that an irrelevant consideration ground is not centrally concerned with the process of making particular findings of fact upon which a decision-maker acts; it is instead concerned with whether a decision-maker has properly applied the law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [74] and Elara v Assistant Minister for Immigration and Border Protection [2017] FCA 1565 at [43] (citing SZNGI v Minister for Immigration and Citizenship [2010] FCA 154 at [22]).
3. However, in order for jurisdictional error to be established on the basis of taking into account an irrelevant consideration, such an error must still be material.

1. As outlined above, particular one provided as follows:
   • The Tribunal failed to properly exercise its discretion not to cancel the applicant's student visa and failed to have regard to the fact that any breach of condition 8202(2) occurred because of circumstances beyond the applicants control.
2. To the extent that the applicant suggested that the Tribunal "failed to properly exercise its discretion not to cancel" the applicant's visa, the Court notes that, as correctly identified by the Tribunal, there are no matters in the Act or Regulations which are required to be considered by the Tribunal in relation to the exercise of that discretion. The Tribunal was, however, required to have regard to the matters raised by the applicant as to why he believed that his visa should not have been cancelled. The Tribunal also correctly confirmed that it had had regard to government policy and the PAM3 guidelines.
3. Insofar as the applicant suggested that the Tribunal did not have regard to the circumstances in which the ground of cancellation arose or did not consider whether any of those circumstances where beyond the applicant's control, this fails on a factual level. The Tribunal considered the matters raised by the applicant in this regard in considerable detail in its written reasons (at [20]-[40]).
4. The Tribunal afforded weight to those matters as follows:

(a) it gave "some weight to the difficulties and stress an ill parent may have" had on the applicant whilst he was in a different country (at [39]);

(b) it gave "minimal weight to the applicant's explanation that he could not afford his fees as his father used [his] savings to pay for his mother's operation and he had to work to save money" (at [39]);

(c) it noted that the applicant "was not required to remain in Australia and could have ... elected to return to Pakistan whilst his mother was sick", particularly if the applicant "could not afford the fees", thus avoiding the non-enrolment issues and subsequent visa cancellation (at [39]); and

(d) it gave some weight to the applicant's evidence that he had "suffered depression which was a contributing factor in his situation", however, the Tribunal noted that limited evidence had been "provided by the applicant or his psychologist to explain that his depression was not manageable" and found that the "applicant was not so unwell that his actions and psychological state were out of his control" (at [40]).

1. As is evidenced by the passages above, the Tribunal clearly had regard to the circumstances in which the ground of cancellation arose (based on the applicant's evidence) and made findings in that regard. This consideration included, importantly, whether any of the factors were out of the applicant's control.
2. The Court otherwise considers that the applicant's complaints in this regard rise no higher than expressing disagreement with the Tribunal's decision. Disagreement, no matter how strongly felt, does not amount to jurisdictional error.
3. No jurisdictional error arises in relation to particular one.

1. Particular two stated:
   • The Tribunal failed to have regard to or give proper and sufficient weight to the fact that the applicants mother was seriously ill in 2015 and that news of his mother's illness adversely effected the applicant, his capacity to attend school and his ability to maintain enrolment in his course of study.
2. The applicant first suggested that the Tribunal failed to have regard to his evidence regarding his mother's illness and the impact it had on him and his capacity to attend school or maintain enrolment.
3. The Court disagrees.
4. It is clear from a fair reading of the Tribunal's reasons that it had regard to this evidence throughout its decision. In particular, the Court notes that the Tribunal:

(a) confirmed it had reviewed the applicant's response to the NOICC (issued to the applicant on 2 November 2016) and noted that the response detailed the applicant's brother notifying the applicant of his mother's illness in May 2015 (at [10]);

(b) confirmed the applicant's further evidence (provided in his NOICC response) in relation to the applicant's mother's illness, her requirement for surgery in August 2015 and the effect that had on the applicant, including resultant depression, the need to see a psychologist and his request to defer his studies (which was refused by his College on two occasions) (at [11]);

(c) referenced the applicant's evidence given at the hearing before it, including confirming that he was not enrolled in a registered course of study because "his mother had medical issues and from that time he was upset and depressed" and, as a result, his enrolment ceased from October 2015 (at [13]);

(d) again referenced the applicant's oral evidence given in relation to his mother, her previous health condition and condition at the time of the hearing, the applicant's desire to visit her and requests for deferment of his studies, the applicant's mental health condition (which he claimed was a result of his mother's illness) and his father's inability to finance his education due to needing to pay for his mother's operation (at [24]-[26]);

(e) detailed its further discussions with the applicant at the hearing regarding his mother's illness and the impact it had on the applicant's mental health and the applicant's treatment by a psychologist in that regard (at [31]-[38]);

(f) considered all of those factors and afforded each some weight (as it was required and entitled to do) (at [38]-[39]); and

(g) again had regard to the applicant's relationship with his mother (including their closeness) and corroborating evidence given by the applicant's friend (and witness) in that regard (at [51]-[52]).

1. The Tribunal ultimately determined, however, that the applicant's circumstances (which included his mother's operation and the stress it caused, together with the applicant's mental health issues) did not outweigh such a significant breach of the applicant's visa conditions (at [55]).
2. To the extent that the applicant suggested that the Tribunal did not give those matters "proper and sufficient weight", it is well established that the Tribunal is entitled to accept, reject or give such weight to the evidence submitted as it deems appropriate in the circumstances: Lee v Minister for Immigration and Multicultural Affairs [2005] FCA 464 at [27]. Further, the degree of weight to be given to the evidence is a factual question for the decision maker alone: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 ("SZJSS") at [33] and Abebe v Commonwealth of Australia [1999] HCA 14 ("Abebe") at [197].
3. No jurisdictional error arises in relation to particular two.

1. Particular three provided as follows:
   • The Tribunal failed to have regard to or give proper and sufficient weight to the fact that the applicant had been seeing a Psychologist from 2015 to 2017 and failed to give sufficient or proper weight to the Psychologist's report dated 30 November 2017.
2. Here, the applicant again suggested that the Tribunal failed to consider evidence given by the applicant in relation to his psychologist, as well as the report provided by that psychologist.
3. This fails on a factual level. The Tribunal expressly referenced this evidence in its written reasons as follows:
   1. The applicant was asked about his mental health and he said he was diagnosed in September and October 2015 by a psychologist whose name was [name omitted]. He attended around 4-5. appointments. These occurred around the time of his mother's operation in August 2015. He said he was diagnosed with anxiety and depression. He was not prescribed any medication however he said that the psychologist suggested rest and cognitive therapies and he spoke to him about the issues he was facing. He stated that the last session was in January 2018. He said that the sessions started last year and he saw him every two to three months. He then stated that he spoke to him over the phone.
   2. The Tribunal noted the letter from [the psychologist] dated 30 November 2017 outlining he had treated the applicant over the past year for depression and anxiety as a consequence of difficulties he has experienced with his studies. The psychologist stated that that he is likely to have his visa cancelled and he is distressed about this however he is now improving and should be in a position to attend a hearing in January 2018.
4. The Tribunal had some concerns about inconsistencies in the applicant's evidence about his treatment by the psychologist, as follows:
   1. The applicant's dates pertaining to his treatment were inconsistent and the Tribunal noted that he claimed he started seeing the psychologist around September 2015 when his mother was unwell. However the psychologist's letter stated that he had only been seeing the applicant in the last twelve months. The applicant explained that he was incorrect and upset and hence confused.
5. Having considered the applicant's evidence and the evidence before it from the applicant's psychologist, the Tribunal ultimately afforded "some weight" in favour of the applicant in that regard, as follows (emphasis added):
   1. The Tribunal notes that the applicant stated that he suffered depression which was a contributing factor in his situation. The Tribunal gives this some weight in favour of the applicant. However limited evidence was provided by the· applicant and his psychologist to explain that his depression was not manageable. For example, rest and cognitive strategies·were recommended to the applicant. If the applicant was unable·to study he could have returned to Pakistan until which time he was better. The applicant was not so unwell that his actions and psychological state were out of his control. He made decisions to postpone study and had planned to re-enrol in the following semester. He also claimed he worked. Such planning requires a reasonable mental state and consideration.
6. As can be seen from the passages above, the Tribunal clearly had regard to the evidence provided by the applicant and his psychologist and, having considered that evidence, the Tribunal gave it some weight in favour of the applicant.
7. To the extent that the applicant again took issue with the weight the Tribunal afforded the applicant's evidence regarding his psychologist or the report provided by that psychologist, the Court again notes that (as outlined above in relation to particular two), the weight given to any evidence is a factual question for the decision maker (in this case the Tribunal) alone: SZJSS at [33] and Abebe at [197].
8. No jurisdictional error arises in relation to particular three.

1. Particular four stated:
   • The Tribunal failed to have regard to or give proper and sufficient weight to the fact that the applicants father needed to attend to medical costs associated with his mother's illness and consequently, could not provide the applicant with sufficient funds for him to pay his outstanding school fees in order to maintain his enrolment.
2. The applicant first suggested that the Tribunal failed to have regard to his evidence that his father needed to attend to medical costs for his mother and therefore could not provide the applicant with sufficient funds to cover his tuition fees.
3. The Court disagrees for the reasons that follow.
4. The Tribunal recorded that it had questioned the applicant about this issue, as follows:
   1. The applicant explained he worked 20 hours per week but he did not earn enough to cover the cost of his fees. The Tribunal asked the applicant why he didn't he return home to Pakistan rather than not pay his fees, be unenrolled and face a cancellation of his visa. After his mother's operation he thought his father would pay and he really wanted to continue his studies.
   2. The Tribunal put to the applicant that he had already told the Tribunal that his father was retired so it begs the question how he could earn money. The applicant responded by saying his father will borrow money from friends. The Tribunal put to the applicant that if he could borrow money for his son's fees then why they didn't borrow money for the operation. He stated that the operation was urgent and very expensive and he could not borrow all of that money as it was approximately 20,000 Pakistani lax.
   3. He said that he would try and earn money in Australia and then save and pay his father back. The applicant confirmed he planned to pay 50% of the fees and then keep making payments but around the time of his mother's operation he realised he did not have enough money for the semester.
   4. The Tribunal asked why the applicant's brothers who were working could not assist with money and he said that they had minimal capacity to pay and were married and it is hard for them.
5. The Tribunal considered the applicant's evidence relating to financial capacity and gave the applicant's explanation "minimal weight", as follows (emphasis added):
   1. The Tribunal has considered the factors raised by the applicant as to why he was unable to be enrolled in a registered course for twelve months. The Tribunal gives some weight to the difficulties and stress an ill parent may have on him when he is in a different country. The Tribunal gives minimal weight to the applicant's explanation that he could not afford his fees as his father used the savings to pay for his mother's operation and he had to work to save money. The applicant was not required to remain in Australia and could have easily elected to return to Pakistan whilst his mother was sick and especially given he could not afford the fees. This would have avoided the non-enrolment issues and subsequent cancellation. Whilst the Tribunal notes the applicant thought that the situation would rectify itself, the applicant made no attempt in the subsequent months to inform the Department and leave. Given this was an option and the applicant remained in Australia, the Tribunal gives no weight to this explanation.
6. It cannot be said that the Tribunal failed to consider the applicant's evidence about his father's inability to provide funds for the applicant's studies because of a need to pay his mother's medical costs. The Tribunal clearly considered that information and afforded the applicant's explanation in that regard "minimal weight".
7. To the extent that the applicant again took issue with the weight the Tribunal afforded the applicant's evidence that his father needed to pay for his mother's medical costs and, as a result, was unable to provide the applicant with sufficient funds to cover his course fees, the Court again notes that (as outlined above), the weight given to any evidence is a factual question for the Tribunal alone: SZJSS at [33] and Abebe at [197].
8. No jurisdictional error arises in relation to particular four.

1. Particular five provided as follows:
   • The Tribunal took account of irrelevant considerations when it stated that it was open to the applicant to return to Pakistan to be with his ill mother when the applicant ascertained that she was seriously ill rather than remaining in Australia.
2. By ground five, the applicant claims that the Tribunal had regard to an irrelevant consideration. Relevantly, the applicant suggests that the Tribunal should not have had regard to the fact that the applicant chose to remain in Australia whilst he was not enrolled in a course of study (instead of returning to Pakistan).
3. As outlined above, there are no specified matters or factors which the Tribunal is required to have regard to when considering whether or not to exercise its discretion to cancel a visa. Further, as outlined above, in order to establish that the Tribunal had regard to an irrelevant consideration, the applicant must establish that the consideration in question is extraneous when viewed in light of the provisions, subject-matter, scope or purpose of the relevant statutory scheme: Neat Domestic Trading at [20] and Peko-Wallsend. That cannot be said in this case.
4. As correctly submitted by the Minister (at [32] in written submissions filed in this Court on 3 February 2025), the applicant's decision to remain in Australia (noting that he was not enrolled in a registered course of study and was thus in breach of Condition 8202 in Schedule 8 of the Regulations) rather than returning to Pakistan to visit his ill mother was entirely relevant to the Tribunal's consideration as to whether to exercise its discretion.
5. The Tribunal considered that information and ultimately determined as follows (emphasis added):
   1. The Tribunal has considered the factors raised by the applicant as to why he was unable to be enrolled in a registered course for twelve months. The Tribunal gives some weight to the difficulties and stress an ill parent may have on him when he is in a different country. The Tribunal gives minimal weight to the applicant's explanation that he could not afford his fees as his father used the savings to pay for his mother's operation and he had to work to save money. The applicant was not required to remain in Australia and could have easily elected to return to Pakistan whilst his mother was sick and especially given he could not afford the fees. This would have avoided the non-enrolment issues and subsequent cancellation. Whilst the Tribunal notes the applicant thought that the situation would rectify itself, the applicant made no attempt in the subsequent months to inform the Department and leave. Given this was an option and the applicant remained in Australia, the Tribunal gives no weight to this explanation.
6. Essentially, the applicant's mother's illness was one of the "circumstances in which the ground of cancellation arose" and that information was put before the Tribunal by the applicant. The Tribunal was thus entitled to have regard to that circumstance, including whether the applicant could have returned to Pakistan to visit his ill mother.
7. No jurisdictional error arises in relation to particular five.

1. Particular six stated:
   • The Tribunal failed to have regard to or give proper or sufficient weight to the hardship which the applicant and his family would endure if his visa remained cancelled and the applicant was unable to complete his studies.
2. Here, the applicant again suggested that the Tribunal failed to consider evidence given by him in relation to the degree of hardship that he or his family would face if his visa remained cancelled.
3. This fails on a factual level. The Tribunal expressly referenced the applicant's evidence in this regard in its written reasons as follows:
   1. The applicant said that a cancellation will cause him emotional hardship. He said that it will be seen as a failure. He also stated that without the ability to remain in Australia and study he has limited qualifications, only a Certificate 3 and 4 and this will not assist him in employment because he wants to work for a bank and they require employees to have a degree.
   2. He said that the family will face financial hardship as his father is now retired and they do not have a source of income just a small amount of savings. They were relying on the applicant to obtain qualifications from Australia so that he can earn a good living and support his family. He said that his brothers have low paying roles and must support their own family.
4. Having considered that evidence, the Tribunal ultimately made findings as follows (emphasis added):
   1. The Tribunal accepts that a cancellation will cause some hardship on the applicant and his family. Given the significant amount of money required to save in order to pay for an education, a cancellation for the applicant means he is unable to complete his qualification in Australia. The Tribunal also appreciates that it is disappointing. The Tribunal accepts that the applicant would not be able to continue to obtain a degree in the short to medium term in Australia and that an Australian qualification is considered highly in Pakistan. However the Tribunal does not accept that the applicant would not be able to complete a degree in Pakistan and nor does it accept that the applicant would not be able to obtain employment in a bank. It is implausible to think that every bank employee requires a degree from overseas. Given this, the Tribunal does not accept that the considerations put forward by the applicant outweigh the severity of the breach in order not to cancel the visa.
5. Based on these extracts, it cannot be said that the Tribunal failed to consider the degree of hardship that the applicant (or his family) would face if his visa remained cancelled.
6. The applicant also took issue with the weight the Tribunal afforded the applicant's evidence in this regard. As outlined above, the weight given to any evidence is a factual question for the Tribunal alone: SZJSS at [33] and Abebe at [197].
7. No jurisdictional error arises in relation to particular six.

1. Particular seven provides as follows:
   • The Tribunal took account of irrelevant considerations and erred at law when it decided to conduct a weight analysis and compare the period of time in which then applicant failed to maintain enrolment with the evidence before it with respect to the circumstances that led to the breach. There is no test that requires the applicant to show that the circumstances that led to the breach of condition 8202 must outweigh the severity of the breach.
2. To the extent that the applicant suggested that the Tribunal was not required or permitted to apportion weight to relevant factors in favour of the applicant, the Court disagrees.
3. The Department's PAM3 policy guideline titled "General visa cancellation powers (s109, s116, s128, s134B and s140)" provided guidance in relation to what a decision maker should do when deciding whether to cancel a visa under s 116 of the Act. At the time of the Tribunal's decision, that policy provided ten matters that a decision maker should take into account (if relevant). The policy also relevantly stated that the "weight applied to each of the matters [was] at the discretion of the [decision maker]" and "each matter must be apportioned a weighting".
4. As outlined above, the PAM3 guideline also provided factors that any decision maker might have regard to. The Tribunal had regard to a number of those matters, including the following:

(a) the purpose of the applicant's travel to and stay in Australia (at [18]-[19]);

(b) the circumstances in which the ground of cancellation arose (at [20]-[40]);

(c) the degree of hardship that may be caused to the applicant and any family members (at [41]-[43]);

(d) whether there would be any consequential visa cancellations (under s 140 of the Act) (at [44]);

(e) the extent of compliance with visa conditions (at [45]);

(f) past and present conduct of the applicant towards the Department (at [46]);

(g) whether there were any mandatory legal consequences of a cancellation decision (at [47]);

(h) whether Australia would be in breach of any international obligations as the result of any cancellation (at [48]); and

(i) any other relevant matters (such as matters raised by the applicant which did not fall within the other nine categories) (at [50]-[57]).

1. The Tribunal properly apportioned weight to those factors (as it was required to do). Ultimately, however, having considered the applicant's circumstances as a whole, the Tribunal determined that the "circumstances put forward by the applicant individually and cumulatively [did] not outweigh the reason not to cancel the visa given the significant period of time in which the breach occurred". On that basis, the Tribunal concluded that the applicant's visa should be cancelled and affirmed the delegate's decision cancelling the visa (at [57]-[59]).
2. The Court is satisfied that the Tribunal's approach in this matter (including the apportioning of weight to the factors outlined above) was correct and does not identify any issue of jurisdictional error on the part of the Tribunal.

1. The application for judicial review and supporting affidavit (both filed by the applicant on 23 July 2018) have failed to identify any jurisdictional error on the part of the Tribunal.
2. The Court is otherwise unable to identify any jurisdictional error.
3. The application is, accordingly, dismissed.

I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.