The High Court has unanimously dismissed all three appeals in Shrestha v Minister for Immigration and Border Protection & Anor; Ghimire v Minister for Immigration and Border Protection & Anor; Acharya v Minister for Immigration and Border Protection & Anor  HCA 35 (15 August 2018). The High Court upheld the judgement handed by the Federal Court of Australia which affirmed the decision of the Migration Review Tribunal (‘the Tribunal’).
Each appeal was a result of a review of separate decisions made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’). Shrestha, Ghimire and Acharya (‘the Appellants’) had all been granted student visas under the definition of an “eligible higher degree student” under the Migration Regulations 1994 (Cth) (‘the Regulations’). These visas were cancelled under s 116(1)(a) of the Migration Act 1958 (Cth) (‘the Act’).
Under the Regulations, if a visa applicant has to undertake a preliminary course of study in order to take a principal course of study, then the applicant would have to be enrolled in that preliminary course of study as well in order to meet the requirements for the visa. The Tribunal found that at time of application for their visas, each Appellant had been enrolled in their respective preliminary course of study. However, at the time of cancellation of the visas and at review of this cancellation, they were no longer enrolled. Therefore, under s 116(1)(a) of the Act, the Minister has the power to cancel the visas, as the circumstances under which the visa was granted, no longer existed.
The Appellants had separately applied to the Federal Circuit Court of Australia for a judicial review, and in each case the appeal was dismissed. They again appealed to the full Federal Court, where their case was heard together, and by majority, the Federal Court found that there was a jurisdictional error in the Tribunal’s decision. However, this error was held to have had no impact on the decisions made by the Tribunal, and so the Tribunal’s decision was upheld.
The majority of the High Court found that the question of whether or not there was a jurisdictional error was irrelevant, as it did not invalidate the Tribunal’s decisions. As Kiefel CJ, Gageler and Keane JJ explains in :
“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. For that reason, the postulated legal error could not have taken the decision of the Tribunal beyond the authority conferred on the Tribunal.”
However, Nettle and Edelman JJ found that there was no jurisdictional error, as explained in :
“The approach taken by the Tribunal in each case was not to focus upon the [Eligible Higher Degree Student] EHDS definition divorced from its underlying circumstances or basis. Rather, as Bromwich J explained, the Tribunal, correctly, considered whether the criteria in the EHDS definition that permitted the grant of the visa no longer existed. As explained above in relation to Mr Shrestha, the Tribunal concluded that the circumstances that permitted the grant of his visa, as with the other appellants, included the satisfaction of the facts in criterion (c) of the EHDS definition. Like the other two appellants, Mr Shrestha satisfied those facts at the time of the grant of his visa but did not do so at the time of cancellation of his visa. At the time of cancellation a circumstance that permitted the grant of his visa no longer existed.”
Regardless, the High Court unanimously dismissed the appeals, affirming the decision made by the Federal Court.
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Shrestha v Minister for Immigration and Border Protection & Anor; Ghimire v Minister for Immigration and Border Protection & Anor; Acharya v Minister for Immigration and Border Protection & Anor  HCA 35
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