Shek v Minister for Immigration and Multicultural and Indigenous Affairs

The case of Shek v Minister for Immigration and Multicultural and Indigenous Affairs involved the applicant, who had been issued a notice under section 20 of the Education Services for Overseas Students Act 2000 (Cth) for breaching a condition of his student visa relating to attendance in his course. The applicant had initially been enrolled in a Diploma of Business course at the Curtin International College but had to transfer to the Alexander Education Group to complete his course after the initial college closed. The issue before the court was whether the Migration Review Tribunal (the Tribunal) made any jurisdictional errors in deciding to cancel the applicant's student visa based on his attendance record during a period not constituting 'each term' of the semester.

The court found that the Tribunal erred in assessing the applicant's attendance record over a period other than one comprising 'each term' of the semester. The visa condition required the applicant to maintain an attendance record for 'each term' of the semester, and the Tribunal should have assessed the applicant's attendance over the full term period. The Tribunal's assessment of the applicant's attendance record from the date of the commencement of his student visa, rather than from the start of the relevant term, was not permissible and constituted a jurisdictional error.

As a result of this error, the court ordered that the Migration Review Tribunal be joined as the second respondent, dismissed the applicant's application, and ordered the applicant to pay the first respondent's costs. The court's decision highlights the importance of assessing compliance with visa conditions over the correct period, in this case, each term of the semester.