Shrestha v Minister for Immigration and Border Protection; Ghimire v Minister for Immigration and Border Protection; Acharya v Minister for Immigration and Border Protection


The High Court has dismissed three appeals against a decision of the Full Federal Court on the precise test for visa cancellations. The appellants all received higher education visas for a preliminary degree leading to a bachelor’s degree, but had those visas cancelled after they were ejected from the preliminary degree program due to poor academic performance. The original grant of those visas required they be enrolled in the course. Section 116 of the Migration Act 1958 (Cth) provides that the Minister may cancel a visa if the Minister is satisfied that ‘any circumstances which permitted the grant of the visa no longer exist’. A majority of the FCAFC held that the Tribunal fell into a jurisdictional error in holding that the cancellation was an available decision on the basis of the applicants’ present ineligibility for a visa, rather than the proper ground of the cessation of their earlier eligibility. But the FCAFC majority also held that because the visas would have been cancelled anyway on the basis that the appellants were no longer enrolled, there was no need to grant relief.

The High Court (Kiefel CJ, Gageler and Keane JJ, and Nettle and Edelman JJ) unanimously dismissed the appeals.

The joint judges (Kiefel CJ, Gageler and Keane JJ) held that the FCAFC majority’s approach was correct. After reviewing the facts and the decisions of the lower courts, the joint judges held that, ‘for the reasons given in Hossain v Minister for Immigration and Border Protection the Tribunal’s ‘postulated legal error’ could not have had any impact on its decisions means it was not a jurisdictional error (at [10]):

The postulated legal error at most led the Tribunal to ask a superfluous question. The Tribunal’s reasons for decision in each case make perfectly clear that its treatment of the relevant circumstance (as meeting the enrolment element of the definition of an “eligible higher degree student”, rather than as enrolment in the particular course in which the visa holder had been enrolled at the time of grant of the visa) did not impact on anything which the Tribunal otherwise did in finding facts and in reasoning to a conclusion as to the preferable exercise of discretion.

Consequently, that error could not have taken the Tribunal beyond the authority conferred on it.

Nettle and Edelman JJ held that while Hossain was resolved on the basis that an error of law that would not have made a difference to the result is not, generally, a jurisdictional error, the appeals here ‘should be resolved on a point that logically precedes that issue’: that the Tribunal here made no error of law (at [14]). After reviewing the criteria for the grant and the cancellation decision (at [15]ff), and the decision below (at [21]ff), Nettle and Edelman JJ endorsed the approach taken by Bromwich J, in dissent at the FCAFC. The s 116 requirements are concerned with factual circumstances, not legal ones (at [32]). While the requirement of the satisfaction of the Minister’s state of mind is a linked requirement, and although a state of mind can be a fact, ‘circumstance’ in s 116 should not be construed as ‘ministerial satisfaction about ministerial satisfaction’ (at [33]). The Tribunal correctly focused on whether the criteria in the definition permitting the grant of the visa no longer existed: each appellant ‘satisfied those facts at the time of the grant of [their] visa[s] but did not do so at the time of cancellation of [their] visa[s]’ because one circumstance permitting the grant no longer existed (at [34]). As the Tribunal made no error of law, it could not have committed a jurisdictional error, and the appeal must be dismissed (at [35], [36]).

High Court Judgment [2018] HCA 35 15 August 2018
Result Appeal dismissed
High Court Documents Shrestha; Ghimire; Acharya
Full Court Hearing [2018] HCATrans 52 21 March 2018
Special Leave Determination [2017] HCATrans 179 14 September 2017
Appeal from FCAFC [2017] FCAFC 69 27 April 2017
Acharya Trial Judgment, FCCA
[2016] FCCA 1240 1 July 2016
Ghimire Trial Judgment, FCCA
[2016] FCCA 1440  17 June 2016
Shrestha Trial Judgment, FCCA
[2016] FCCA 828  17 June 2016
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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