Mahon v Minister for Immigration and Citizenship [2025] FedCFamC2G 1183

1. On 23 February 2022, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 19 January 2022. The Tribunal affirmed the decision of a delegate of the first respondent cancelling, under s 109 of the Act, a Working Holiday (subclass 417) visa held by the applicant.
2. For the reasons that follow, the application is dismissed.

1. On 3 August 2020, the applicant, a citizen of Ireland, lodged an application for a Working Holiday (subclass 417) visa.
2. Based on the information in the visa application, on 3 August 2020 the applicant was granted the visa.
3. On 11 May 2021, a delegate of the first respondent sent the applicant a notice of intention to consider cancellation of the visa under s 109 of the Act (NOICC). The NOICC informed the applicant that the delegate believed she had, in completing her visa application, given or provided incorrect information in non-compliance with s 101(b) of the Act. The particulars of the incorrect information were that the applicant stated in the application form that she was employed with AAG Labour Services Pty Ltd for at least three months, but in September 2020 AAG Labour Services Pty Ltd informed the Department of Home Affairs (Department) that the applicant never worked at their business. The NOICC invited the applicant to comment on the possible non-compliance and provide reasons why the visa should not be cancelled.
4. On 1 June 2021, the applicant provided a response to the NOICC, along with a statutory declaration, character references, and medical documents.
5. On 5 July 2021, the delegate made a decision cancelling the visa under s 109 of the Act.
6. On 9 July 2021, the applicant applied to the Tribunal for review of the delegate's decision.
7. On 3 November 2021, the Tribunal invited the applicant to attend a hearing on 22 November 2021.
8. On 22 November 2021, the applicant appeared before the Tribunal to give evidence and present arguments.
9. On 19 January 2022, the Tribunal affirmed the decision to cancel the applicant's visa.

1. The Tribunal at [7] considered whether, and was satisfied that, the NOICC complied with the relevant legislative requirements in s 107 of the Act.
2. The Tribunal at [9]-[14], with reference to s 108(b) of the Act, considered "whether there was non-compliance by the visa holder in the way described in the notice": s 108(b). The Tribunal at [14] concluded that "there was non-compliance with s 101(b) by the applicant in the way described in the" NOICC. Specifically, the applicant stated in her visa application that she had worked at AAG Labour Services Pty Ltd when she had never worked at AAG Labour Services Pty Ltd. The Tribunal at [13] added that "the applicant was aware [the incorrect information] was false".
3. The Tribunal at [15]-[28] considered whether the applicant's visa should be cancelled under s 109(1) of the Act. In doing so, the Tribunal had regard to the matters prescribed in r 2.41 of the Migration Regulations 1994 (Cth) (Regulations) and Departmental policy set out in the Department's Procedural Advice Manual (PAM3) 'General visa cancellation powers'. The Tribunal, after considering these matters, concluded at [28] that "having regard to all the relevant circumstances, ... the visa should be cancelled". Accordingly, the Tribunal affirmed the delegate's decision to cancel the visa.

Judicial review application and steps up to hearing on 2 July 2025

1. On 23 February 2022, the applicant filed in this Court an application for judicial review of the Tribunal's decision which, although signed by the applicant, contains contact details for a lawyer (Lawyer) (Application). The Application contained the following six grounds (as written):
   1. That second respondent failed to properly interpret and apply s. 109(1) of the Migration Act 1958.
   2. That the second respondent failed to properly consider all the relevant considerations.

3. That the second respondent's decision was an improper exercise of power

4. That the second respondent's decision was unreasonable

5. That the second respondent's decision involved an error of law.

6. That the decision was otherwise unlawful

1. On 20 May 2022, a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing a written submission, any amended application, and any additional evidence on which she sought to rely.
2. Following a period of inactivity, on 21 May 2025 the registry of the Court informed the parties that the matter was listed for hearing on 2 July 2025.
3. On 19 June 2025, chambers received from the Lawyer a "Notice of intention to withdraw as lawyer" served on the applicant by the Lawyer on 17 June 2025.
4. On 25 June 2025, the first respondent filed a written submission.
5. Between 30 June and 1 July 2025, there were email communications between chambers and the parties in which the applicant sought an adjournment of the hearing on mental health grounds but, after reviewing medical documents provided by the applicant in support of the adjournment request, I declined to adjourn the hearing because the documents did not establish that the applicant was unable to attend or participate in the hearing. However, I permitted the parties to appear at the hearing by video link.
6. The applicant did not file or serve any further materials before the hearing on 2 July 2025.

1. At the hearing in this Court on 2 July 2025, the applicant appeared by video link unrepresented, and Matthew Sheedy from Sparke Helmore Lawyers appeared for the first respondent by video link.
2. The applicant had a copy of an amended Court Book, filed by the first respondent in June 2025, which contained the Tribunal's decision and documents before the Tribunal. At the commencement of the hearing, I directed the applicant's attention to the Tribunal's decision. I explained that the Court's role was limited to considering whether or not there was a jurisdictional error, which I described as a significant error or mistake, in the Tribunal's decision. With reference to the Tribunal's decision, I explained the main categories of jurisdictional error. I explained that, for the applicant to win the Court proceeding, she must persuade the Court there is a jurisdictional error in the Tribunal's decision.
3. Mr Sheedy tendered a copy of the amended Court Book (CB).
4. The applicant sought to tender the medical documents she provided to chambers in support of her adjournment request, being a letter from Dr Yong dated 1 July 2025 and scripts for two items of medication dated 1 July 2025. Although I considered that the medical documents were not relevant to establishing whether there was a jurisdictional error in the Tribunal's decision, I admitted the documents into evidence.
5. I invited the applicant to make closing oral submissions. The applicant, to her credit, focused on trying to identify errors in the Tribunal's decision. I address the applicant's submissions below.
6. Although I accept that the applicant has a mental health condition, I was impressed by, and appreciated, her ability to make clear and thoughtful submissions in support of her case.
7. Mr Sheedy, in his oral submissions, relied on the first respondent's written submission filed in June 2025, and responded to the applicant's oral contentions.

1. The grounds in the Application are generic and contain no particulars. A "failure to particularise a ground of review is itself a sufficient basis to dismiss it": NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 176 at [37].

1. At the hearing on 2 July 2025, the applicant made a number of complaints about the Tribunal's decision. The applicant's complaints, and responses, are as follows.
2. First, the Tribunal at [21], in considering the prescribed circumstance in reg 2.41(e) of the Regulations (present circumstances of visa holder), stated that "the applicant's mental health care needs may be better met in her home country, where she would have access to health care and social benefits that may not be available to her as someone in Australia on a temporary visa". The applicant stated at the hearing on 2 July 2025 that, if she had time, she could prove that the mental health system in Australia is better than in Ireland. Difficulties with this contention are:

(a) Even if the applicant could prove that the mental health system in Australia is better than in Ireland, this does not identify an error in any finding by the Tribunal at [21]. Among other reasons, the Tribunal's finding took into account the applicant's nationality and the fact that she was in Australia on a temporary visa.

(b) In any event, the applicant has not provided evidence to the Court which establishes that the mental health system in Australia is better than in Ireland.

1. Second, the Tribunal at [19] stated that "the applicant has now stayed in Australia for more than 16 months on a visa that she was not entitled to in the first place" and this factor "weigh[s] strongly in favour of cancellation". The applicant stated at the hearing on 2 July 2025 that she did not agree with this finding because she did not choose to stay in Australia until the hearing before the Tribunal in November 2021. Instead, she was required to stay in Australia until the hearing in November 2021, and it was unfair that the Tribunal weighed this factor in favour of cancellation. In response to this contention:

(a) I disagree with the premise of the applicant's contention that she did not choose to stay in Australia between the date her visa was cancelled in July 2021 and the date of the hearing in the Tribunal in November 2021, and was required to stay in Australia. The applicant chose to stay in Australia.

(b) I consider that it was open to the Tribunal to weigh as a factor strongly in favour of cancellation that she had "benefitted from the provision of the false information in that the visa was granted in circumstances where it ought not to have been approved" (at [18]), and the benefit included that "the applicant has now stayed in Australia for more than 16 months on a visa that she was not entitled to in the first place" (at [19]).

1. Third, the Tribunal at [23] summarised the applicant's evidence concerning her family in the United Kingdom and Ireland. The applicant stated at the hearing on 2 July 2025 that the Tribunal should have taken her family history into consideration or made an effort to understand the applicant or her family history. As correctly stated by Mr Sheedy in a reply submission, the Tribunal at [23] considered the applicant's evidence and claims concerning her family in the United Kingdom and Ireland, and this was not a case where it was legally unreasonable for the Tribunal to not make further enquiries about the applicant or her family history.
2. Fourth, the applicant contended at the hearing on 2 July 2025 that, in her evidence or submissions to the Tribunal, she believes she linked her mental health condition to a fear of returning to Ireland. The applicant appeared to contend to the Court that the Tribunal did not take this matter into account. Two difficulties with this contention are:

(a) The applicant did not identify in the Court Book any claim by the applicant to the Tribunal linking her mental health condition to a fear of returning to Ireland. For example, no such claim appears in her statutory declaration dated 31 May 2021.

(b) The Tribunal at [24], in considering the factors in PAM3 (summarised at [19]), found that "the applicant has not ... claimed that returning to Ireland would result in her suffering significant fear or harm". This finding is uncontradicted by evidence before the Court.

1. Fifth, the applicant contended at the hearing on 2 July 2025 that the Tribunal should have taken the COVID-19 pandemic into consideration, and given weight, in the applicant's favour, to the severity of what was going on in the world because of the COVID-19 pandemic. A difficulty with this contention is that the Tribunal at [11] and [23] considered the COVID-19 pandemic when it recorded the following evidence of the applicant:

[11] She said she suffered from panic attacks, depression, and anxiety and "got stuck in Sydney" and she could not face going somewhere else "in the middle of a pandemic" and that is why she didn't relocate to complete the work required for the visa extension.

...

[23] The applicant said that although she had Irish heritage, her home was the United Kingdom, and she wasn't allowed to go back to the United Kingdom due to rules surrounding the COVID-19 pandemic...

1. In a reply submission, the applicant, with reference to the issue in paragraph 32 above, stated that she would like to provide further evidence to the Court about mental health in Ireland. I was uncertain whether this was a submission or a request for additional time following the hearing to prepare, file and serve further evidence. If this was a request for additional time, I would not have granted it. Among other reasons, it is unclear how further evidence about mental health in Ireland might establish a jurisdictional error in the Tribunal's decision, and the applicant has not provided satisfactory evidence to explain why she did not obtain this evidence in the three years she had to prepare for the hearing on 2 July 2025.
2. For the above reasons, the applicant has not identified a jurisdictional error in the Tribunal's decision. It follows that the Application must be dismissed.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Sheedy sought an order that the applicant pay the first respondent's costs in the sum of $6,500 which was not greater than the first respondent's solicitor/client costs.
2. The applicant stated that she was not financially stable, the costs order would place a financial strain on her, and she may need a payment plan to pay this amount. However:

(a) In circumstances where the scale amount is $8,371.30, which is "a benchmark for what the Judges of the Court, or a majority of them, consider to be fair and just in a given case" (Gehlert v Minister for Immigration & Multicultural Affairs [2024] FCAFC 12 at [69]), I consider the amount of $6,500 sought by the first respondent is reasonable.

(b) That the applicant might have difficulty meeting a costs order "does not provide a principled basis for not making a costs order": Masone v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 64 at [8]. The applicant, by making and progressing the application to hearing, has forced the respondent to incur legal costs. I consider that her financial instability does not affect a determination of an amount which is fair and just in the present matter.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.