Sharma (Migration)

This matter concerned an appeal by Mr Sharma against the decision of the Minister for Immigration and Border Protection to cancel his Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The Minister's decision was based on the grounds that Mr Sharma was not enrolled in a course at an appropriate level and that the Minister was not satisfied that Mr Sharma was a genuine applicant for entry and stay as a student.

The primary legal issue before the court was whether the Minister's decision to cancel Mr Sharma's visa was affected by an error of law. This required the court to consider whether the Minister had properly applied the relevant legislative provisions and whether the factual findings underpinning the cancellation decision were supported by evidence. Specifically, the court had to determine if Mr Sharma's enrolment in a vocational education course, despite having previously been an eligible higher degree student, and his stated difficulties with English language comprehension, constituted a failure to meet the genuine student requirement.

The court found that the Minister had erred in law. It was noted that Mr Sharma's significant change in course direction occurred in a short period, and he had acted on inaccurate advice from a migration agent. The court determined that the Minister's conclusion that Mr Sharma was not a genuine applicant for entry and stay as a student was not reasonably open on the evidence. The court also considered that Mr Sharma was not enrolled in a bachelor’s degree or master’s degree course, which was a relevant factor in assessing his eligibility.

Consequently, the court set aside the decision under review.