Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69

Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69

The appeals were dismissed. A majority held that the Tribunal asked the wrong question in applying s 116(1)(a) by focusing on whether the appellants currently satisfied the eligible higher degree student definition rather than whether a circumstance permitting the visa grant no longer existed, but all members of the Court concluded that relief should be refused because, on the facts found, the relevant course enrolments no longer existed, the cancellation power was inevitably enlivened, and there was no possibility of a different discretionary outcome. Bromwich J would also have held that no jurisdictional error was established.

Jurisdiction
Australia
Judgment Date
27 April 2017
Procedural Posture
Appeals From Federal Circuit Court Decisions Dismissing Judicial Review Applications Concerning Cancellation of Student (class Tu) Higher Education Sector (subclass 573) Visas / Full Court Appeal
Outcome
Appeals dismissed with costs.
Legal Topics
['jurisdictional Error' 'judicial Review Remedies' 'discretionary Refusal of Relief' 'cancellation of Student Visas' 'migration Act 1958 (cth) S 116(1)(a)' 'meaning of Circumstance Permitting the Grant of a Visa' 'eligible Higher Degree Student Criteria']
['administrative Law' 'migration Law'] ['jurisdictional Error' 'judicial Review Remedies' 'discretionary Refusal of Relief' 'cancellation of Student Visas' 'migration Act 1958 (cth) S 116(1)(a)' 'meaning of Circumstance Permitting the Grant of a Visa' 'eligible Higher Degree Student Criteria']

Case Brief

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Procedural Posture

Appeals From Federal Circuit Court Decisions Dismissing Judicial Review Applications Concerning Cancellation of Student (class Tu) Higher Education Sector (subclass 573) Visas / Full Court Appeal

Legal Issues

  1. 1 ["Whether the Tribunal applied the version of s 116(1)(a) of the Migration Act 1958 (Cth) applicable to the appellants' visa cancellations." 'Whether the Tribunal asked itself the wrong question by considering whether the appellants remained eligible higher degree students rather than whether a circumstance permitting the grant of each visa no longer existed.' 'Whether the appellants remained eligible higher degree students after ceasing to be enrolled in their diploma courses and later their bachelor degree courses.' 'Whether relief should be refused on discretionary grounds because no different outcome could have occurred had any Tribunal error not been made.']

Ratio Decidendi

The appeals were dismissed. A majority held that the Tribunal asked the wrong question in applying s 116(1)(a) by focusing on whether the appellants currently satisfied the eligible higher degree student definition rather than whether a circumstance permitting the visa grant no longer existed, but all members of the Court concluded that relief should be refused because, on the facts found, the relevant course enrolments no longer existed, the cancellation power was inevitably enlivened, and there was no possibility of a different discretionary outcome. Bromwich J would also have held that no jurisdictional error was established.

Court Disposition

Appeals dismissed with costs.

Orders

  • ['In each proceeding, the appeal is dismissed.' "In each proceeding, the appellant pay the respondent's costs of the appeal."]