Federal Court of Australia

Delpachitra v Minister for Immigration and Citizenship [2026] FCA 925

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s name be amended to “Minister for Immigration and Citizenship”.

2.    The notice of appeal filed on 13 May 2025 is dismissed.

3.    The appellant is to pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCELWAINE J:

1    The appellant was granted a Student (Temporary) (class TU) Student (subclass 500) visa on 28 September 2016. On 27 July 2018, a delegate of the Minister cancelled the visa pursuant to s 116 of the Migration Act 1958 (Cth) because the appellant had not been enrolled in a full-time registered course of study between 23 August 2017 and 14 June 2018 contrary to Condition 8202(2)(a) of the Migration Regulations 1994 (Cth).

2    On 1 August 2018, the appellant applied to the Administrative Appeals Tribunal to review the cancellation decision. On 22 June 2019, the Tribunal affirmed the cancellation decision and gave written reasons for so doing (TD).

3    On 18 July 2019, the appellant filed an application for judicial review with the Federal Circuit Court of Australia. On 24 April 2025, the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) dismissed the application: Delpachitra v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 570 (PJ).

4    On 13 May 2025, the appellant filed his notice of appeal in this Court. (It was not docketed to me until 25 May 2026. I promptly made procedural directions and listed the hearing for 14 July 2026. The delay in docketing the matter has been explained internally as related to a backlog of appeals accumulated during the COVID-19 pandemic as well as significant re-staffing within the Court Migration Team).

5    The appellant’s argument below, which he maintains on appeal, is that the Tribunal committed jurisdictional error in asking itself the wrong question in the exercise of the discretion to affirm the visa cancellation decision pursuant to s 116 of the Act. That is, by commencing with the premise that the failure to comply with the visa condition was serious without understanding the reason for non-compliance.

6    For the reasons that follow, I reject the argument and dismiss the appeal.

Background

7    The appellant arrived in Australia in October 2011 on a student visa. He subsequently completed his Diploma of Hospitality in February 2014 and enrolled in a Bachelor of Hospitality Management in August 2015. The appellant was granted a further student visa on 28 September 2016 for the purposes of completing his Bachelor of Hospitality Management.

8    On 7 June 2018 the Minister’s Department sent the appellant a notice of intention to consider the cancellation of his student visa. The notice advised the appellant that, pursuant to s 116(1)(b) of the Act, there appeared to be a ground for the cancellation of his visa. The notice advised the appellant that he may not have complied with Condition 8202(2)(a) of the Regulations which required enrolment in a full-time registered course.

9    The appellant appointed a registered migration agent as his representative who provided a response to the notice on 15 June 2018.

10    As noted, on 27 July 2018 a delegate of the Minister cancelled the appellant’s visa. The delegate was satisfied that the appellant did not satisfy the requirements of Condition 8202(2)(a) of the Regulations as he was not enrolled in a full-time registered course between 23 August 2017 and 14 June 2018.

11    On his review application, on 14 June 2019 the appellant attended a hearing before the Tribunal. The Tribunal had information from the Provider Registration and International Student Management System which indicated the appellant had not been enrolled (as found by the delegate) which the appellant confirmed was correct. The Tribunal uncontroversially found that the appellant had not complied with Condition 8202(2)(a) of the Regulations for approximately 10 months: TD [10].

12    Next the Tribunal recognised that s 116 conferred a discretion to cancel the visa and noted that neither the Act nor Regulations specify matters which must be considered in exercising the discretion: TD [11]. The Tribunal proceeded to weigh multiple considerations for and against the exercise of the discretion (TD [12]-[45]), to conclude that considering all relevant matters together the visa should be cancelled: TD [46].

13    The appellant filed for judicial review in the Federal Circuit Court of Australia on 18 July 2019. By an amended application filed on 15 October 2024, the appellant relied on two grounds of appeal before the primary judge:

1.    The Administrative Appeals Tribunal asked itself the wrong question in finding that the reason why the [appellant] had ceased to be enrolled in a registered course was “serious” wrongly in isolation from the reason for the cessation, namely the [appellant]’s financial hardship.

2.    The Administrative Appeals Tribunal failed or constructively failed to consider the evidence and submissions that a discretionary reason not to cancel the visa was that the [appellant] only had four more subjects to complete, and/or that the Tribunal denied the [appellant] procedural fairness or failed to exercise its jurisdiction in so doing.

14    In the primary judge’s reasons for rejecting ground one, her Honour stated at PJ [66]:

The question for the Tribunal, once it found that the [appellant] had failed to comply with condition 8202(a), was whether it should exercise its discretion to cancel the [appellant]’s visa. The Tribunal correctly identified this question. In considering this question, the Tribunal had regard to the [appellant]’s circumstances, including the reason for the non-compliance. Considering all the matters it identified as relevant, individually and cumulatively, and balancing and weighing those matters, the Tribunal exercised its discretion to cancel the [appellant]’s visa. What is important in this matter is that the Tribunal correctly identified and understood the matters relevant to the exercise of its discretion, including the reasons for the non-compliance, and had regard to them. It was the consideration of all these factors that led to the Tribunal exercising the discretion in the way it did, rather than the characterisation of the non-compliance as serious. The Tribunal has not asked itself the wrong question by characterising the non-compliance as serious without expressly addressing, in making that finding, the reasons for the non-compliance.

15    The primary judge dismissed ground two at PJ [78]-[88], and there is no appeal from that.

16    Being dissatisfied, the appellant relies on two appeal grounds in this Court:

The primary judge erred by:

a.    failing to find that the second respondent itself the wrong question in finding that it was “serious” that the appellant had ceased to be enrolled in a registered course, wrongly in isolation from the reason for the cessation, namely, the appellant’s financial hardship;

b.    disposing of the appellant’s argument by reference to illogicality, irrationality or unreasonableness when the ground before the primary judge was not in those terms.

17    In written submissions Mr Guo contends for the appellant that the jurisdictional error committed by the Tribunal, and not corrected by the primary judge, arises in this way:

17.     It may be accepted that in a broad evaluative sense, the primary judge was not wrong at [66] to say it was “open” for the Tribunal to have identified what it considered to be relevant. But having done so did not engage with the question of the correctness of treating Mr Delpachitra’s cessation of enrolment as a “serious” breach of his visa conditions. The Tribunal’s conclusion that the breach was “serious” was plainly an important part of its decision-making.

18.     A fair reading of the Tribunal’s reasons—and most acutely at [38] of its reasons—shows that the Tribunal began from the premise that the cessation of enrolment was, in and of itself, “serious”, and then sought to balance that separately-found “serious” non-compliance with reasons for it. The fact that the Tribunal engaged in a balancing of a pre-determinedly (in the sense of firstly-found) “serious” non-compliance is also reflected in its repeated but inapt description of financial circumstances as invoking the criminal law concept of “remorse”. That is, the Tribunal had already found that the non-compliance was “serious” before next considering whether there was “remorse” for the “serious” non-compliance.

19.     This was analytically wrong. There ought not to have been what in substance was a starting assumption that the cessation was “serious”: cf Tribunal’s reasons at [38].

20.     The reason why is because not all breaches are the same. Not all breaches deserve the label of “serious”. One must necessarily understand why the breach occurred. To say that is simply to apply the ordinary meaning of “serious”. It is just a matter of ordinary English expression.

18    Thus, the submission continues, the primary judge commenced from “the wrong de facto assumption that the cessation in enrolment was ‘serious’” in isolation of the reason for it. This was a fundamental misunderstanding of the question that the Tribunal was required to answer pursuant to s 116 of the Act.

19    In oral submissions, Mr Guo (with characteristic skill) subtly refined the argument. Once the discretion at s 116 of the Act to cancel a visa for non-compliance with a condition is enlivened, the weighing of factors relevant to the discretion does not commence with a pre-loaded scale of serious without engaging with why that is so. The reason in this case for non-enrolment was critical in that the appellant could not afford the course fees. This was not a case of deliberate unexplained failure to maintain enrolment. Not all acts, errors or omissions qualify as serious failures. Section 116 requires the decision-maker to understand the facts before turning to weighing the relevant matters. Here, the Tribunal commenced that exercise from an incorrect premise and thereby fell into jurisdictional error.

20    As to ground two, the submission is that the appellant did not raise before the primary judge legal unreasonableness, want of logic or irrationality and the reference by her Honour to these concepts at PJ [65] is a misunderstanding of the argument that was put and is not a basis to dismiss the grounds. In argument, Mr Guo accepted that if ground one fails, this ground adds nothing to the appellant’s arguments.

21    Mr Dour for the Minister succinctly submits that the appellant has not identified jurisdictional error in the Tribunal reasons. The appellant has not exposed what question the Tribunal was required, but failed, to answer. The focus on the finding that the appellant’s contravention was serious at TD [34] and [38] overlooks that the Tribunal commenced from the correct premise that the appellant had not been enrolled in a registered course of study for 10 months, which then engaged the discretion at s 116 of the Act. The Tribunal’s characterisation of the contravention was a conclusion open to it when weighing the various considerations for and against cancellation of the visa.

22    I accept the thrust of the Minister’s submission. The jurisdictional threshold at s 116 of the Act, “if satisfied that”, which engages the discretionary cancellation power was met by the admitted fact that between 23 August 2017 and 14 June 2018 the appellant contravened Condition 8202(2)(a) of Schedule 8 of the Regulations: Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486 at [53]-[54] (Gilmour and Mortimer JJ). The Tribunal correctly understood that: TD [10]. The Tribunal also correctly understood it was required to consider whether the cancellation power should be exercised in the particular circumstances of the appellant’s case: TD [11]. It then proceeded, in some detail, to consider those matters.

23    The Act does not expressly or by necessary contextual implication require, permit or forbid the consideration of the matters that inform the exercise of the discretion: Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at [20] (Gleeson CJ); Gupta at [54]. The appellant does not complain about the range of matters considered by the Tribunal, nor that an irrelevant matter was considered. It was therefore a matter for the Tribunal to identify and attach such weight as it thought fit to the factors for and against the exercise of the discretion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40 (Mason J). That is how the primary judge reasoned at PJ [66].

24    The appellant’s acceptance that it was open to the Tribunal to consider the range of matters that it did is problematic when one turns to the submission that it was an error for the Tribunal to commence with the assumption that the contravention was serious without interrogating why he failed to maintain a full-time registered course of approved study for approximately 10 months.

25    I am quite unable to accept the submission. The Tribunal identified as a relevant consideration the hardship that may be caused by cancellation from TD [30]. In considering that issue, the Tribunal found at TD [34]:

The Tribunal accepts that a cancellation may contribute to the emotional pressure and stress that the [appellant] may already be facing. However, the Tribunal is also mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as no-enrolment. Whilst appreciating the hardship the [appellant], his brothers and their families and the [appellant]’s Sri Lankan parents may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

26    Next the Tribunal considered the circumstances that led to the contravention from TD [35]. It accepted the appellant’s evidence of financial hardship (summarised at TD [35]-[37]) to which it afforded “some weight”, finding at TD [38]:

The Tribunal acknowledges that the [appellant] has stated he wishes to study in Australia. Whilst the Tribunal have given some weight to his claim that he experienced financial difficulties and is now remorseful for his inability to study in Australia. The fact is that the [appellant]’s brothers are now able to financially assist him after the visa has been cancelled despite saying they previously were not able to do so. The Tribunal appreciates there would have been financial pressure and stress for the [appellant], however student visas are granted for the purposes of studying and achieving a qualification. Individually and cumulatively the issues put forward by the [appellant] pertaining to the circumstances in which the breach occurred are given some weight but not sufficient weight to outweigh the reasons for cancelling the visa because of the seriousness of the breach.

27    The fact of contravention was the premise for the exercise of the discretion, not that cessation of enrolment for 10 months was serious. Having correctly identified the jurisdictional threshold to consider cancellation of the visa, the Tribunal made uncontroversial background findings at TD [12]-[22]; including at TD [20] that the reason for the appellant’s cessation of enrolment was an inability to fund the course fees. At TD [23]-[27], the Tribunal made findings about the appellant’s purpose in obtaining the visa, to conclude at TD [28]:

The Tribunal appreciates the significance of obtaining a student visa for the applicant and his family, but it does not operate to ameliorate the applicant for a lack of prioritising his studies because of his lack of monetary funds.

28    At TD [29], the Tribunal accepted the appellant’s evidence that in all other respects he had complied with the visa conditions, which was given some weight in favour of non-cancellation, but then recorded the legislative expectation “that all visa holders adhere to the conditions on their visa”.

29    The impugned findings at TD [34] and [38] must be read in context. In each the reference to the seriousness of breaching a condition of enrolment of a student visa follows from the Tribunal’s findings about what caused the contravention and the appellant’s submissions fail to identify any express or necessarily implied limitation at s 116 of the Act which constrained the Tribunal from characterising the contravention as it thought fit. The Tribunal’s adjectival characterisation of the admitted contravention was not a jurisdictional error: if there was an error, it was factual and within jurisdiction: Re Refugee Tribunal; Ex parte AALA [2000] HCA 57; (2000) 204 CLR 82 at [163] (Hayne J).

30    Similarly, s 116 of the Act did not preclude the Tribunal from concluding that the contravention was “in and of itself ‘serious’” (to adopt another of the appellant’s submissions). The appellant’s case reduces to complaints about the weight the Tribunal gave to the matters considered. It is an impermissible invitation to engage with the merits.

31    In any event, as explained the Tribunal did understand that the appellant’s financial circumstances were the reason for the contravention: TD [20], [21], [35], [36] and [38].

32    Finally, appellant’s submissions are not assisted by criticising the Tribunal’s reference to the concept of remorse at TD [38]. The Tribunal did not misapply a criminal law concept. What the Tribunal accepted in that paragraph was the appellant’s evidence that he regretted the contravention - a matter which weighed in favour of not cancelling the visa.

33    For these reasons, the appeal is dismissed with the usual costs order.

Associate:

Dated:    16 July 2026