Khan (Migration)

The applicant, Khan, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to cancel her Student (Temporary) (Class TU) Subclass 573 visa. The cancellation was based on Khan's failure to maintain enrolment in a registered course for a period exceeding 12 months.

The primary legal issue before the Federal Circuit Court was whether the Minister's decision to cancel Khan's visa was affected by jurisdictional error. This involved considering whether the Minister had adequately taken into account the applicant's personal circumstances, including her mental health issues, her mother's car accident, and the associated family pressure, which she argued constituted exceptional circumstances amounting to hardship.

Justice Westaway found that the significant time period of non-enrolment was a critical factor. While acknowledging the applicant's stated personal difficulties, the court determined that these circumstances did not, in the context of the Migration Act 1958 (Cth) and relevant regulations, amount to the exceptional hardship required to override the mandatory cancellation provisions. The court reasoned that the applicant had not demonstrated that the hardship was so severe or unusual as to warrant a different outcome, particularly given the substantial period of non-compliance with visa conditions.

The application for judicial review was dismissed, and the decision to affirm the cancellation of the applicant's visa was upheld.