KOUSHAL (Migration)

The applicant, Mr Koushal, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel his Student (Temporary) (Class TU) visa, subclass 500. The cancellation was based on the ground that the applicant was not enrolled in a course at the required Australian Qualifications Framework (AQF) level, contrary to section 137J(1)(a) of the *Migration Regulations 1994* (Cth).

The primary legal issue before the Federal Court was whether the Minister, in exercising the discretion to cancel the visa, had adequately considered all relevant factors, including the applicant's personal circumstances. Specifically, the court was required to determine if the Minister had properly weighed the applicant's study record, which included non-commencement of studies, cessation of studies, and unsatisfactory course progress, against mitigating factors such as the closure of his education provider, the death of a friend, and the resulting impact on his mental health.

Justice Jackson found that the delegate had failed to adequately consider the impact of the friend's death and the applicant's subsequent mental health issues on his ability to comply with his visa conditions. While the delegate acknowledged these factors, the reasoning did not demonstrate a proper weighing of their significance in the context of the applicant's overall circumstances and the decision to cancel his visa. The court concluded that the delegate's consideration of these mitigating factors was superficial and did not meet the requirements of procedural fairness.

The application for judicial review was therefore granted, and the decision to affirm the cancellation of the applicant's visa was set aside. The matter was remitted to the Minister for reconsideration according to law.