Dong (Migration)

The applicant, Dong, sought judicial review of a decision by the Minister for Immigration and Border Protection to cancel her Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The cancellation was based on the applicant ceasing enrolment in her registered course. The applicant contended that her enrolment ceased due to family financial hardship, and that her study rights had ceased upon her being granted a bridging visa. A significant consequence of the visa cancellation was the imposition of a three-year bar on her ability to apply for a partner visa.

The primary legal issue before the court was whether the delegate's decision to cancel the applicant's visa was affected by jurisdictional error. This involved determining whether the delegate had properly considered the applicant's circumstances, particularly the reasons for her cessation of enrolment and the impact of the three-year bar on her ability to seek a partner visa. The court was required to assess if the delegate had failed to take into account relevant considerations or had taken into account irrelevant considerations when making the cancellation decision.

His Honour, O'Loughlin J, found that the delegate had failed to properly consider the applicant's submission regarding family financial hardship as a reason for her ceasing enrolment. The delegate's decision notice did not demonstrate that this submission had been adequately addressed or weighed. Furthermore, the delegate had not adequately considered the impact of the three-year bar on the applicant's ability to apply for a partner visa, which was a significant consequence of the cancellation. Consequently, the court concluded that the delegate's decision was affected by jurisdictional error.

The decision of the delegate to cancel the applicant's visa was set aside.