Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs is a case concerning the judicial review of a decision by the Administrative Appeals Tribunal (AAT) to cancel a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa. The applicant, Kandel, had been granted a visa for the purpose of studying a Bachelor of Information Technology course at the University of Canberra but instead enrolled in a Diploma and Advanced Diploma in Leadership and Management at another institution. The AAT found that the applicant's actions constituted a breach of the visa conditions and cancelled the visa. The applicant sought judicial review of the AAT's decision.

The primary legal issue before the court was whether the AAT had fallen into a jurisdictional error in cancelling the applicant's visa. The applicant argued that the AAT erred in its consideration of the breach of the visa conditions and in its exercise of discretion not to cancel the visa. The court considered whether the AAT's decision was lawful and whether any jurisdictional error had been made.

The court found that the AAT had not erred in its consideration of the breach of visa conditions. The court held that the AAT was correct to identify that the applicant's failure to maintain enrolment in the course for which he had been granted the visa constituted a breach of the visa conditions. The court also found that the AAT had given active consideration to the discretion not to cancel the visa, taking into account all relevant matters. The court held that there was no jurisdictional error in the AAT's decision.

As none of the grounds of judicial review had merit, the court dismissed the applicant's application. The ratio of the case is that the AAT, in considering all factors, did not err in exercising its discretion under s 116(1)(b) of the Act to cancel the applicant’s visa. The court emphasised that the task of a Court conducting judicial review is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it, not to consider the merits or wisdom of the decision or to remake the decision.