Nisar (Migration)

This matter concerned an appeal by Mr Nisar against the decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel his Subclass 573 Higher Education Sector visa. The cancellation was based on Mr Nisar's failure to comply with visa condition 8202, which requires a student visa holder to maintain enrolment in a registered course and make satisfactory progress.

The primary legal issue before the Federal Circuit Court was whether the Minister's decision to cancel Mr Nisar's visa was affected by jurisdictional error. This required the Court to consider whether Mr Nisar had provided sufficient information to the Minister regarding his circumstances, including his relationship problems and his experience of anxiety and depression, which he contended impacted his ability to meet the course progress requirements. The Court also had to determine if Mr Nisar's stated intention to complete his qualification was genuine.

In his reasoning, Judge Harkess noted that while Mr Nisar had not met the academic progress requirements, the evidence before the Minister did not adequately address the impact of his personal circumstances on his ability to comply with the visa conditions. The Court found that the Minister's delegate had not properly considered the information provided by Mr Nisar concerning his mental health and relationship issues, nor had they adequately assessed his genuine intention to complete his studies. Consequently, the delegate's decision was found to be affected by jurisdictional error.

The Court ordered that the decision of the Minister to cancel Mr Nisar's visa be set aside.