Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1655

1. By way of Application filed on 17 June 2022, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 18 May 2022 (Tribunal's Decision) pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) (Application).
2. By the Tribunal's Decision, the Tribunal affirmed the decision of a delegate (Delegate) of the first respondent (Minister) to cancel the Applicant's Student (Temporary) (Class TU) Student (Subclass 500) visa (Visa) under s 116(1)(e)(i) of the Migration Act.
3. The hearing of the Application took place at the Melbourne Registry of the Court on 23 September 2025 (Hearing). The Minister was represented by Counsel. The Applicant was self-represented with the assistance of a Punjabi interpreter. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

1. The issue in dispute is whether the Tribunal made a jurisdictional error in affirming the Delegate's Decision to cancel the Applicant's Visa.

1. The Applicant is a citizen of India.
2. In or around 2016, the Applicant first arrived in Australia as the holder of a Visitor (Subclass 600) visa.[2]
3. On 24 October 2019, the Applicant was granted the Visa, the subject of these proceedings. The Applicant was granted the Visa on the basis that he was a member of the family unit of a primary student visa holder, being his wife (Wife).[3]
4. On 12 February 2021, the Visa Cancellations Division of the Department of Home Affairs (Department) requested personal information pertaining to updated contact details from the Applicant.[4]
5. On 12 February 2021, the Applicant responded to the Department's request for information.[5]
6. On 16 February 2021, the Applicant's Wife responded to the Department's request for information.[6]
7. On 23 February 2021, a Delegate of the Minister issued a Notice of Intention to Consider Cancellation (NOICC) of the Applicant's Visa under s 116(1)(e)(i) of the Migration Act.[7] The NOICC outlined that a ground for cancellation may exist, as the Applicant faced pending criminal charges and was under investigation by the Western Australian Department of Transport (WADT).[8]
8. On 23 March 2021, the Applicant appointed a representative (Representative).[9]
9. On 29 March 2021, the Applicant's Representative provided submissions to the Department in response to the NOICC.[10]
10. On 21 April 2021, a Delegate of the Minister cancelled the Applicant's Visa under s 116(1)(e)(i) of the Migration Act (Delegate's Decision).[11]
11. On 27 April 2021, the Applicant applied to the Tribunal for review (Review Application).[12]
12. On date same, the Tribunal acknowledged receipt of the Review Application.[13]
13. On 1 June 2021, a Delegate of the Minister notified the Tribunal that s 375A of the Migration Act applied to various information contained in the Applicant's Departmental file (Non-Disclosure Certificate).[14] The information broadly contained:

(a) email correspondence between the Department and Western Australian Police (WAPOL) regarding:[15]

(i) the status of the Applicant's pending charges;

(ii) the status of the Applicant's investigations, including possible further charges;

(iii) the Applicant's bail conditions; and

(iv) an allegation that the Applicant had breached his Visa conditions;

(b) statements of material facts in relation to the Applicant's charged offences;[16]

(c) email correspondence between the Department, WAPOL and WADT regarding the WADT investigation into the Applicant;[17] and

(d) an internal Department 'escalation template'.[18]

1. A Delegate of the Minister found that disclosure would be contrary to public interest as would prejudice a current or pending investigation and undermine the effectiveness of those investigations.[19] Pursuant to s 375A(2)(b) of the Migration Act, the Delegate advised that the Tribunal must "do all that is necessary" to ensure that the information would not be disclosed to any person other than a Member.[20]
2. On 20 October 2021, the Tribunal invited the Applicant to attend a hearing on 5 November 2021.[21]
3. On 26 October 2021, the Applicant's brother[22] (support person) provided a response to the hearing invitation form and written submissions.[23]
4. On 3 November 2021, the Tribunal advised that the hearing would be postponed due to Member unavailability.[24]
5. On 13 December 2021, the Tribunal invited the Applicant to attend a hearing on 17 January 2022.[25]
6. On 10 January 2022, the Applicant's support person provided a response to the hearing invitation form and further submissions.[26]
7. On 17 January 2022, the Applicant and his support person attended the hearing, which was adjourned due to technical difficulties.[27]
8. On 18 January 2022, the Tribunal invited the Applicant to attend a rescheduled hearing on 22 January 2022.[28]
9. On 22 January 2022, the Applicant's support person provided a response to the hearing invitation form with further written submissions.[29]
10. On 22 January 2022, the Applicant and his support person attended the hearing (First hearing).[30]
11. On 2 February 2022, the Tribunal invited the Applicant to comment on or respond to information put to him.[31] The information outlined in the letter comprised a summary of the information covered by the Non-Disclosure Certificate concerning the Applicant's pending criminal charges and the WADT investigation.[32]
12. On 9 February 2022, the Applicant responded to the invitation with written submissions.[33]
13. On 25 February 2022, the Applicant was invited to attend a further hearing on 11 March 2022.[34]
14. On 3 March 2022, the Applicant's support person provided a response to the hearing invitation form.[35]
15. On 4 March 2022, the Tribunal indicated that they had been advised by the Department that the Applicant had been granted a Bridging Visa E and released from an Immigration Detention Centre.[36]
16. On 11 March 2022, the Applicant, his Wife and support person attended the hearing (Second hearing).[37]
17. On 18 March 2022, the Applicant's support person provided further written submissions in support of the Review Application.[38]
18. On 18 May 2022, the Tribunal affirmed the Delegate's Decision.[39]

1. The Tribunal's Decision is at 504 to 524 of the Court Book.
2. The Tribunal outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal's Decision [1] to [7].
3. The Tribunal considered whether the grounds for cancellation under s 116(1)(e)(i) were made out, and if so, whether the Applicant's presence in Australia was a risk to the "health, safety or good order" of the Australian community.[40] The Tribunal identified the issue before it as whether the Visa should be cancelled on the basis of the evidence before it.[41]

Section 116(1)(e) - risk to Australian community or individual

1. The Tribunal noted that, since the Delegate's Decision, the Applicant plead guilty to three criminal offences, including indecent assault and the possession and supply of an illicit drug.[42] The Tribunal was satisfied that the Applicant had breached other laws and regulations based on his taxi licence suspension by the WADT.[43]
2. The Tribunal rejected the Applicant's claims that he had only plead guilty to his criminal offences "to avoid more severe sanctions from the courts".[44]
3. The Tribunal was satisfied that the Applicant's behaviour as a taxi driver involved "deliberate" and "frequent" acts of defrauding passengers to assist conducting the sale of illicit substances for commercial purposes.[45]
4. The Tribunal accepted that the Applicant suffers from a mental condition.[46] However, the Tribunal was not satisfied that this condition diminished his responsibility in relation to his wrongdoing.[47]
5. The Tribunal noted that the Department's grant of the Bridging Visa E following the Applicant's release from detention undermined the grounds for cancellation under review. However, the Tribunal found that it was not bound by the Bridging Visa E grant and placed limited weight on this matter.[48] The Tribunal placed negligible weight on the Applicant's grant of bail, given that the threshold for cancellation[49] was different to a grant of bail.
6. The Tribunal found that the Applicant's presence in Australia presented a risk to the "health, safety or good order of the Australian community".[50]

1. The Tribunal had regard to the circumstances of the case, including matters raised by the Applicant and matters in the Department's Procedures Advice Manual (PAM3).[51]
2. The Tribunal noted that it placed no weight on the Applicant being charged with a deprivation of liberty offence, given that the charge had been withdrawn.[52]
3. The Tribunal accepted that the Applicant was in Australia to support his Wife so that she could advance her studies and pursue permanent residency.[53] However, the Tribunal noted that pursuing residency was not the purpose of a student visa and was not a compelling reason for the Applicant to remain in Australia.[54]
4. The Tribunal accepted that the Applicant would face substantial financial, emotional and psychological hardships if the Visa were cancelled.[55] However, the Tribunal considered that the Applicant would have emotional support and capacity to work upon return.[56]
5. The Tribunal found that the Applicant's mental health was an extenuating circumstance to be given "notable amount" of weight in his favour.[57] However, the Tribunal found that the Applicant's wrongdoing was not beyond his control and could not be attributed to his lack of understanding of the English language.[58]
6. The Tribunal gave some weight to the finding that the Applicant had been cooperative with the Department while in Immigration Detention.[59] The Tribunal also considered, in the Applicant's favour, that he was receiving treatment for his mental health and had the support of his family in Australia.[60]
7. The Tribunal placed considerable weight on the Applicant's disregard of the law, his apparent lack of remorse, and the overall seriousness of the offences.[61] The Tribunal found that these factors outweighed countervailing considerations before it. Accordingly, the Tribunal affirmed the Delegate's Decision to cancel the Visa under s 116(1)(e) of the Migration Act.[62]

1. On 17 June 2022, the Application was filed in this Court, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 16 September 2022, Orders were made by Registrar Van Der Westhuizen of this Court for the First Respondent to file and serve a copy of the Court Book. For the Applicant to file and serve at least 28 days before the hearing: written submissions, any amended application and any additional evidence. For the First Respondent to file and serve at least 14 days before the hearing: written submissions and any additional evidence.
3. On 30 July 2025, Orders were made by Registrar Lindsay of this Court for the First Respondent's name be amended to "Minister for Immigration and Citizenship". That all previous orders be vacated. That the matter be listed for final hearing. That the Applicant file and serve at least 28 days before the hearing: any amended application, any written submissions and any further evidence. That the First Respondent file and serve at least 14 days before the hearing: any amended response, any written submissions and any further evidence. The Court noted that the Applicant had retained a copy of the Court Book. The Court also noted that the matter was to be expedited to be heard by a Judge at the first available opportunity.
4. On 20 August 2025, Orders were made by me for the Applicant's time for complying with Order 4 of the Orders made by Registrar Lindsay be extended to 2 September 2025. That the Respondent's time for complying with Order 5 of the Orders made by Registrar Lindsay be extended to 16 September 2025.
5. This matter was heard on 23 September 2025 for a Final Hearing before me.
6. The Applicant relied upon the following documents:

(a) the Application filed 17 June 2022; and

(b) Affidavit of the Applicant affirmed 16 June 2022 (Applicant's Affidavit); and

(c) supplementary submissions filed 6 October 2025.

(a) the response, filed 1 July 2022;

(b) outline of submissions filed 16 September 2025; and

(c) list of authorities filed 22 September 2025.

1. Both parties relied on the Court Book.
2. The Application contains the following grounds of review (Ground of Review):
   1. The department made a procedural error by not correctly assessing information relevant to the applicant's particular circumstances. (Ground 1).

Particulars:

The department of immigration and border protection failed to consider the other relevant matter in support of my case and previous immigration history and compliance with the visa conditions was not considered.

1. The applicant was not afforded natural justice. (Ground 2).
2. Tribunal misconstrued s 116(1)(e)(i) of the Migration Act 1958. According to the tribunal, The Tribunal cannot be satisfied that the applicant's visa should not have been cancelled that is not true as I have provided evidence of the charges being dropped. (Ground 3).
3. Particular:

The evidence by the tribunal that compelled them to make this decision is void and without base and facts. No evidence was provided why tribunal came to this conclusion. They refused the case on different basis. They only considered the departmental information and other relevant criteria was not assessed. No regard was given to the evidence provided. (Ground 4).

1. Despite of the repeated request the member did not provide any time to provide the documents. (Ground 5).

2. Member erred in dismissing the applicant's application without providing extra time without any basis in law and facts. (Ground 6).

3. The appellant's application clearly raises an arguable case, and the decision of the tribunal is short and void and must be overlooked again. (Ground 7).

4. Substantial justice was not provided and that's the reason I want to apply in the Federal Circuit Court of Australia. (Ground 8).

(Words in bold added, otherwise as written)

1. The Applicant did not file any written submissions.
2. At the start of the Hearing, the Applicant sought an adjournment which I refused for reasons given orally, including that there was no evidence that the Applicant was prevented from attending court or participating effectively in a court hearing. I also gave leave to the Applicant to file a written submission at the conclusion of the Hearing.
3. The applicant made oral submissions in support of his Grounds of Review. His central point was that whatever happened in the past as a result of ill mental health, has now been rectified. He also emphasised that one of the charges had been withdrawn by the police.
4. In the Applicant's supplementary submission filed 6 October 2025, he raised a number of matters. These matters included that:

(a) he said that a reference in the Tribunal Decision of an attempt to contact the airline to leave Australia was false;

(b) his deprivation of liberty charge had been dismissed;

(c) he only worked overtime during school holidays;

(d) his mental health was good; and

(e) he needed a chance to "happily stay in Australia with my family".

1. The Minister submits that the Application failed to disclose any jurisdictional error in the Tribunal's Decision and should be dismissed.

1. The Applicant does not specify the "other relevant matter" that the Tribunal failed to consider.
2. The Minister notes that the Tribunal properly considered the Applicant's immigration history as well as compliance with visa conditions. The Tribunal was correct to note that the Applicant first arrived in Australia on a visitor visa and subsequently applied for the Visa as a member of his Wife's family unit[63]. The Minister notes that the Tribunal had regard to the Applicant's compliance with his Visa conditions and gave this matter some weight in his favour.[64]

1. The Applicant alleges that he was denied a fair opportunity to provide "verbal evidence". The Minister notes that the Tribunal invited the Applicant to appear before it and provide oral evidence in relation to the Review Application.[65] The hearing was conducted over the course of two days, and the Applicant was assisted by a Punjabi interpreter on both occasions.[66] The Applicant does not raise further particulars to suggest that he was denied a meaningful opportunity to provide verbal evidence.
2. The Minister submits that there is no merit in the assertion that the Applicant was not provided with a copy of the Delegate's Decision and the Tribunal's Decision. The Minister notes that these decisions were sent to the Applicant's authorised recipients.[67] In any event, a "defective" notice does not render the decisions invalid.[68]

1. The Minister submits that the Tribunal did not misconstrue s 116(1)(e)(i) of the Migration Act. The Tribunal's Decision discloses that it:

(a) understood that cancellation was a "two step" process. Namely, a ground for cancellation under s 116(1) was required and if established, the Tribunal was required to consider whether to cancel the Visa in the exercise of its discretion;

(b) accurately recorded the content of s 116(1)(e)(i) and case law on the meaning of this provision;[69] and

(c) did not misapply or misunderstand s 116(1(e)(i) in concluding that there was a ground for cancellation.

1. The Applicant claims that his Visa should not be cancelled as he provided evidence of the charges being "dropped". The Minister submits that this claim seeks impermissible merits review by the Court.[70] If the request is interpreted as a complaint that the Tribunal failed to consider the discontinuance of his charges, this alone does not disclose error. The Tribunal accepted that the Applicant's charge for deprivation of liberty had been discontinued and would not be considered when exercising discretion. [71]

1. The Minister submits that the Applicant's assertion that the Tribunal's Decision is "void" is without merit and does not disclose error. The decision, some 131 paragraphs, appropriately set out the evidence on which the Tribunal's findings were based. The Tribunal's Decision was based on the same foundation as the Delegate's Decision, being the power of cancellation under s 116(1)(e)(i) of the Migration Act.

1. The Minister submits that these grounds have no factual basis. The Applicant has not provided any evidence that he was refused "extra time" to provide unspecified documents. The Minister notes that the Applicant was in fact provided additional time to provide further submissions at the conclusion of the Second hearing.[72]

1. The Minister submits that these grounds are not proper grounds of review and should be dismissed.

1. The Minister concedes that the Non-Disclosure Certificate[73] was, at least in part, invalidly issued. A non-disclosure certificate will be validly issued if:

(a) it specifies a reason as to why disclosure is not in the public interest at common law or under s 130 of the Evidence Act 1995 (Cth);[74] and

(b) there is a probative, rational and logical basis for the identification of that reason.[75]

1. The Minister notes that providing reasons as to why disclosure is not in the public interest is sufficient to ground a claim for public interest immunity. However, the Minister concedes that a majority of the information covered by the Non-Disclosure Certificate did not provide a probative, rational and logical basis for concluding that disclosure would not be in the public interest. Accordingly, the Non-Disclosure Certificate was largely invalidly issued.
2. In cases where there has been a breach of s 375A of the Migration Act, the Minister submits that error will only arise where the breach is material. That is, had the error not been made, there would be a realistic possibility of a different outcome.[76] The Minister submits that the Tribunal's Decision would not have been realistically different had the Non-Disclosure Certificate not been issued.
3. The Minister notes that the material covered by the Non-Disclosure Certificate was not capable of "improving" the Applicant's case. Rather, the material was either adverse to the Applicant or neutral in nature.
4. The Minister submits that the Applicant was not denied procedural fairness on the basis that the adverse material was not provided to him. The Tribunal's obligation under s 359A of the Migration Act was not engaged in circumstances where the information in question was set out in the Delegate's Decision.[77] In any event, the Tribunal discharged its obligations under s 359A by providing the Applicant with clear particulars of the information it considered would be the reason, or part of the reason, for affirming the decision under review.[78]
5. The Minister's counsel made oral submissions expanding on the written ones.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[79]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The court neither consider the merits of the decision nor remakes it.[80] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[81]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[82] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error 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".[83] Different kinds of error may overlap.[84] The categories are not closed.[85]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[86] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[87] It has been described as an "undemanding" standard.[88]

1. Section 116(1)(b) of the Migration Act provided (at the time of the Tribunal's Decision) that the Minister may cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa. Section 116(2) provided that a Minister is not to cancel a visa under s 116(1) if there are prescribed circumstances in which a visa is not to be cancelled. Section 116(3) provided that if the Minister may cancel a visa under s 116(1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

1. The Department's Procedures Advice Manual 3, General visa cancellation powers provides for the matters which delegates of the Minister and the Tribunal should take into account, if relevant, in deciding whether to cancel a visa in exercise of the discretionary power in s 116(1)(b) of the Migration Act.
2. In El Ess and Another v Minister for Immigration and Multicultural and Indigenous Affairs,[89] Gray J stated:[90]

In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230; (2000) 61 ALD 641at [28]-[29] and Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 at [15]- [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.

1. The Grounds of Review would appear to include what might be characterised as 'template grounds' that have been copied from earlier cases.[91] This may explain why some of the factual assertions in the grounds appear to have no application to the facts of the case.

The Department made a procedural error by not correctly assessing information relevant to the applicant's particular circumstances.

Particulars:

The department of immigration and border protection failed to consider the other relevant matter in support of my case and previous immigration history and compliance with the visa condition was not considered.

1. Section 476(2)(a) of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to a "primary decision", which is defined to include privative clause decisions or purported privative clause decisions, reviewable under Part V, which includes the Delegate's Decision.
2. I do not have jurisdiction to determine Ground 1.
3. To the extent that the reference to "the Department" in Ground 1 should be construed as a reference to the Tribunal, I note that the Tribunal Decision records that it did consider the Applicant's "migration history" and "compliance with visa conditions".[92] The Applicant also made oral submissions that he was not working illegally, which was accepted by the Tribunal.[93] The "other relevant matter" referred to in the particulars is unidentified.

The applicants were not afforded natural justice.

Particulars:

I believe that I wasn't provided a fair opportunity to provide the verbal evidences to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs did not provide the decision record for their decision which clearly depicts an error.

1. The Delegate's Decision was a 'Part 5-reviewable decision'.[94] The requirements of natural justice in relation to the Applicants' hearing before the Tribunal were codified by Division 4 of Part 5 of the Migration Act in relation to the matters dealt with in that Division.
2. Section 360 of the Migration Act provided (at the date of the Tribunal's Decision):
   1. The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
   2. Subsection (1) does not apply if:
      1. the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
      2. the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
      3. subsection 359C(1) or (2) applies to the applicant.
   3. If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
3. The Applicant was given an opportunity to "give evidence and present arguments relating to the issues arising in relation to the decision under review" at two hearings:

(a) on 17 January 2022 via teleconference facility; and

(b) on 11 March 2022 via an internet-enabled audio-visual platform.

1. Both hearings were conducted with the assistance of an interpreter in the Punjabi and English languages. At the first of the hearings, the Tribunal heard evidence from the Applicant and his brother. At the second of the hearings, the Tribunal heard evidence from the brother and the Applicant's spouse, Sukhpreet Kaur.[95]
2. There is no substance to the complaint that the "AAT and Department of Home Affairs did not provide the decision record for their decision". The Delegate's Decision and the Tribunal's Decision were sent to the relevant authorised recipients.[96]
3. I am not satisfied that jurisdictional error is made out by reference to Ground 2.

Tribunal misconstrued s 116(1)(e)(i) of the Migration Act 1958. According to the tribunal, The Tribunal cannot be satisfied that the applicant's visa should not have been cancelled that is not true as I have provided evidence of the charges being dropped.

1. Section 116(1) of the Migration Act provides:

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

...

(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i) the health, safety or good order of the Australian community or a segment of the Australian community; or

(ii) the health or safety of an individual or individuals; or

1. The Tribunal identified the relevant provision and its content correctly. The Tribunal's Decision provides:[97]

Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the grounds set out in s 116(1)(e)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

1. The Tribunal applied a two-step process.[98] The Tribunal correctly summarised law as explained in Gong v Minister for Immigration and Border Protection[99] and Tien v Minister for Immigration and Multicultural Affairs.[100] The Tribunal's conclusion that the "threshold test" had been satisfied did not involve any misunderstanding or misapplication of the law.[101]
2. I turn then to the issue of "charges being dropped".
3. Paragraph [75] of the Tribunal's Decision provides:[102]

The Tribunal notes that the applicant had another charge against him, involving the serious offence of depriving a person of her liberty, a female passenger, in a separate indecent pertaining to the conviction for sexual assault. This incident appears to be raised as one of the disqualifying behaviours identified by the relevant Department that led to suspension of the applicant's licence. The criminal charge was dropped in early 2022. The Tribunal places no weight on that discontinued charge as to whether the grounds for cancellation are made out in this matter.

1. Paragraph [84] of the Tribunal's Decision provides:[103]

There was also evidence about a charge of deprivation of liberty. This charge was later dismissed for want of prosecution on 2 February 2022, as evidenced by recent submissions from the applicant's criminal lawyer. The Tribunal accordingly places no weight on this matter when considering the circumstances in which the ground for cancellation arose or any other aspect of these below mentioned considerations. Similarly, given the informant's retraction of the adverse information put to the applicant under s 359AA, the Tribunal is compelled not to place any weight on this information either in favour or against this visa remaining cancelled.

1. It is plain that the Tribunal was aware of the circumstance of the dropping of the deprivation of liberty charge. The Tribunal placed no weight on the dropped charge.
2. The Tribunal was entitled to, and did, have regard to the fact that the Applicant plead guilty to three offences, admitted breaching at least one minor consumer law relating to passengers, and had breached multiple other laws and regulations which led to the suspension of his licence by the Department of Transport.[104]
3. I am not satisfied that jurisdictional error is made out by reference to Ground 3.

Particular:

The evidence by the tribunal that compelled them to make this decision is void and without base and facts. No evidence was provided why tribunal came to this conclusion. They refused the case on different basis. They only considered the departmental information and other relevant criteria was not assessed. No regard was given to the evidence provided.

1. Doing the best that I can to make sense of Ground 4, the matters raised do not identify any jurisdictional error in the Tribunal's Decision:

(a) first, the evidence relied upon by the Tribunal in making its decision was not "void" or "without base and facts". The Tribunal's Decision itself sets out the factual basis for the decision that was made in considerable detail;

(b) second, the allegation that "no regard was given to the evidence provided" has no substance. The evidence provided that was not considered is not identified. It is not apparent what "evidence provided" was given no regard; and

(c) third, the allegation that "relevant criteria was not assessed" has no substance. The "relevant criteria" that was not assessed is not identified. It is not apparent from the Tribunal's Decision that "relevant criteria" was not assessed.

1. I am not satisfied that jurisdictional error is made out by reference to Ground 4.

Despite of the repeated request the member did not provide any time to provide the documents.

Member erred in dismissing the applicant's application without providing extra time without any basis in law and facts.

1. At the conclusion of the second hearing date, the Applicant was given time to provide further material to the Tribunal, and he did so.[105] Apart from this, it is not apparent what the reference to "repeated requests" and request for provision of "extra time", is a reference to.
2. I am not satisfied that jurisdictional error is made out by reference to Grounds 5 or 6.

The appellant's application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again.

Substantial justice was not provided and that's the reason I want to apply in Federal Circuit Court of Australia.

1. The question before the Court is not whether the Applicant has raised an arguable case, rather it is whether the Tribunal made a jurisdictional error. The Tribunal's Decision is neither short nor, so far as is apparent to me, void. The Tribunal's Decision would appear to address "the issues arising in relation to the decision under review".
2. I am not satisfied that jurisdictional error is made out by reference to Grounds 6 or 7.

1. I have considered the matters set out in the Applicant's supplementary submissions filed on 6 October 2025. A number of the matters set out in those submissions are addressed above, for example, the issue concerning the deprivation of liberty charge.
2. Paragraph 3 of the Applicant's supplementary submissions provides:

I am writing this letter to the federal court, in my AAT Decision they mentioned that I try to be contacted to airline to leave Australia, but that was false allegation ,or misunderstanding I never contact to airline during my cases they didn't have any evidence which proofs it so, as my prospect it's not good .

1. In relation to the issue concerning departure from Australia, the Tribunal's Decision records:

After the resumed hearing, the applicant submitted a number of submissions, which include some specific comments about adverse information. In particular, the applicant pointed out that he contacted an airline to leave Australia, but he could not do so as the authorities confiscated his passport as part of his bail conditions. This was outlined in the applicant's statutory declaration dated 18 March 2022.

1. The statutory declaration provides that "I never tried to book any flight with Qantas airline during Xmas period 2020".[106]
2. The Tribunal's Decision makes no finding in respect of this issue. Accordingly, the information does not appear to have been material to its decision.
3. I cannot discern any jurisdictional error or arguable jurisdictional error in the additional matters raised by reference to the Applicant's supplementary submissions.

1. The Minister's submissions set out the background to this matter:[107]
   1. On 1 June 2021, the delegate certified, and notified the Tribunal, that s 375A of the Act applied to a number of folios contained in the Departmental file (non-disclosure certificate). Broadly, those folios contained:
      • email correspondence between the Department of Home Affairs (Department) and Western Australian Police (WAPOL) regarding the status of the applicant's pending charges, the status of investigations in relation to possible further charges, the applicant's bail conditions, and an allegation that the applicant had worked in breach of his visa conditions;
      • statements of fact for charged offences;
      • email correspondence between the Department, WAPOL and WADT regarding an investigation into the applicant by WADT;
      • a table of alleged offences that were the subject of the WADT investigation; and
      • an internal Department 'escalation template'.
   2. The delegate found that disclosure of those folios was contrary to the public interest as it would prejudice a current or pending investigation of a possible breach of the law or enforcement of the law and disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law, the disclosure of which would or would be likely to prejudice the effectiveness of those methods.
2. Section 375A of the Migration Act provided (at the time of the Decision):

375A Certain information only to be disclosed to Tribunal

1. This section applies to a document or information if the Minister:
   1. has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
   2. has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
2. If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
   1. the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
   2. the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.

1. The Minister concedes that the Non-Disclosure Certificate[108] was, at least in part, invalidly issued:[109]

The reasons why disclosure was not in the public interest set out in the non-disclosure certificate are capable of grounding a claim for public interest immunity. However, save for folios CLD2020/40106377, CLD2020/40729368, CLD2021/3705590, CLD2021/4339963, and CLD2021/8534560 (which refer to ongoing investigations, seemingly unknown to the applicant at the time), the majority of the folios covered by the non-disclosure certificate do not provide a probative, rational and logical basis for a conclusion that their disclosure is not in the public interest for the reasons stated in the non-disclosure certificate. Accordingly, the non-disclosure certificate was invalidly issued, at least in respect of the folios not mentioned above.

1. In Minister for Immigration and Border Protection v SZMTA,[110] (SZMTA) Bell, Gageler and Keane JJ stated:[111]

Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof. The Full Court was correct to hold in CQZ15 that evidence of the content of notified information can be relevant to the determination of materiality and can on that basis be admissible in such an application. The Full Court was also correct to find on the evidence adduced in BEG15 that the undisclosed and incorrect notification in that case was immaterial. The undisclosed and incorrect notification in SZMTA was similarly immaterial and did not result in jurisdictional error.

...

The precondition in s 438(1)(a) is met if the Minister, acting within the bounds of reasonableness and on a correct understanding of the law, has certified that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for a reason specified in the certificate. The reason so specified must be a reason (other than a reason which would permit certification under s 437) that could form the basis for a claim by the Executive Government of the Commonwealth in a court proceeding that the matter contained in the document, or the information, should not be disclosed. Where no ground of privilege or statutory immunity from disclosure is engaged, the reason specified in the certificate must therefore be a reason capable of grounding a claim for public interest immunity from disclosure at common law or under s 130 of the Evidence Act 1995 (Cth).

...

Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice"[32]: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision.

(Emphasis added)

1. Having regard to the Minister's acceptance that the Non**-Disclosure Certificate was,** at least in part, invalidly issued, and applying SZMTA, the non-disclosure was a breach of the Tribunal's obligation of procedural fairness. That breach would constitute jurisdictional error where such non-disclosure was material, in the sense that, had the error not been made, there was a realistic possibility of a different outcome.[112]
2. The material the subject of the Non-Disclosure Certificate is set out in the supplementary court book. It is largely comprised of emails between the Department of Home Affairs and Western Australian Police (for example, updating information). It includes several statements of material facts prepared by the Police.[113] It includes a Suspension of Passenger Transport Driver Authorisation and Notice to Show Cause,[114] a table of potential offences and an 'escalation template'.[115] Having regard to the content of that material, I am not satisfied that there is a realistic possibility that disclosure could have led to a different outcome. In this regard, I note that I have found nothing in the material that would have improved the Applicant's case in respect of the matters forming the basis of the Tribunal's Decision, or would otherwise assist him in achieving a favourable outcome.
3. The substance of the material the subject of the Non-Disclosure Certificate has been disclosed to the Applicant either through the Delegate's Decision[116] or the letter sent by the Tribunal under s 359A of the Migration Act.[117] Because of that disclosure, I am not satisfied that the failure to provide the documents subject of the Non**-**Disclosure Certificate resulted in a practical injustice to the Applicant. The Tribunal provided the Applicant with clear particulars of the information it considered would be the reason, or part of the reason, for affirming the decision under review.[118] Any error constituted by the failure to disclose was not a material one.
4. I am not satisfied that the Tribunal committed jurisdictional error by reason of the failure to disclose documents the subject of the Non-Disclosure Certificate.

1. As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[119] the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $9,097.93 being the scale amount.[120] I am satisfied that costs ought to follow the event,[121] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the Court file.[122]

I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 23 September 2025, Order 1.

[15] Supplementary Court Book (SCB) 1-7 and 8-14, 18-25, 26, 28-36, 37-46, 47-56, 57-59, 60-69, 70-82, 98-108, 109-119, 127-137, 142-153, 165-175, 176-187.

[17] SCB 83-92 and 93-94, 95-97, 120-122, 123-126, 138-141, 154-158, 159-161, 162-164.

[49] See s 116(1)(e) of the Migration Act.

[61] CB 522-523 [119]-[121], [124]-[125].

[63] CB 517-518 [85]-[86], [91], [94].

[65] s 360(1) of the Migration Act.

[68] ss 127(3) and 368A(3) of the Migration Act. The Court also does not have jurisdiction to review the Delegate's Decision: ss 476(2)(a) and 476(4)(a) of the Migration Act.

[70] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

[74] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [19].

[75] Singh v Minister for Immigration and Border Protection [2020] FCA 783 at [55].

[76] SZMTA at [4], [38]. See also LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 80 CLR 321 (LPDT) at [7].

[77] s 359A(4)(b) of the Migration Act; CB 248: the Delegate's Decision was given to the Tribunal for the purpose of the Review Application.

[79] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (Plaintiff S157/2002).

[80] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allson CJ, Besanko and O'Callaghan JJ at [17].

[82] Plaintiff S157/2002.

[84] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].

[87] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[88] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].

[89] [2004] FCA 1038; (2004) 142 FCR 43.

[91] See Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1381 at [61].

[92] CB 517 [85], [86], [91] and [95]-[98].

[94] ss 338(2) and 347(2) of the Migration Act.

[99] [2016] FCCA 561 at [41].

[100] [1998] FCA 1552; (1998) 89 FCR 80.

[107] Minister's outline of submissions filed 17 September 2025 [8]-[9].

[109] Minister's outline of submissions filed 17 September 2025 [42].

[110] [2019] HCA 3; (2019) 264 CLR 421.

[117] Which includes the Delegate's Decision. CB 335-337.

[119] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [113].

[120] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172 (Gehlert).

[121] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.