Shrestha v Minister for Immigration and Border Protection

The High Court of Australia considered appeals by visa holders against decisions of the Minister for Immigration and Border Protection to cancel their student visas. The dispute arose after the Migration Review Tribunal affirmed the cancellation decisions, finding that the visa holders were no longer eligible higher degree students. The core of the disagreement concerned whether the Tribunal had erred in law by focusing on the legal characterisation of the circumstances permitting the visa grant, rather than the factual circumstances themselves.

The legal issues before the High Court were whether the Migration Review Tribunal had made an error of law, and consequently a jurisdictional error, by considering the legal characterisation of the circumstances that permitted the grant of the visa, rather than the factual circumstances themselves. This question turned on the proper interpretation of the definition of an "eligible higher degree student" and the Minister's power to cancel a visa if the circumstances that permitted its grant no longer existed.

The High Court reasoned that the Tribunal had correctly approached the matter by considering whether the criteria within the definition of an "eligible higher degree student" that underpinned the visa grant had ceased to exist. The Tribunal found that while the appellants met these criteria at the time of their visa grant, they no longer satisfied them at the time of the visa cancellation. This meant that a circumstance which had permitted the grant of their visas no longer existed. The Court concluded that the Tribunal had made no error of law and therefore no jurisdictional error. Consequently, each appeal was dismissed with costs.