Shrestha v Minister for Immigration and Multicultural Affairs

The case of Shrestha v Minister for Immigration and Multicultural Affairs involved a Nepalese citizen challenging the decision of the Migration Review Tribunal to uphold the cancellation of his student visa. The Tribunal had affirmed the Minister's delegate's decision to cancel the visa due to the applicant's failure to meet course requirements. The applicant sought judicial review of the Tribunal's decision, claiming it was made contrary to s 476(1)(e) of the Migration Act 1958. The legal issues before the court were whether the Tribunal had fully considered the relevant procedures advice manual policy and if the policy itself was lawfully promulgated. The court found that the Tribunal did not fully consider the policy, which might mitigate the strict conditions of the visa. Additionally, the court examined whether the policy was validly promulgated under the Act.

The court concluded that the Tribunal had not appropriately applied the relevant procedures advice manual policy, which could have allowed for the consideration of circumstances reasonably beyond the applicant's control. This was deemed an error involving the incorrect application of the law. Furthermore, the court found that condition 8202 of the visa, which mandates strict compliance with course requirements, should not be read literally to deny all discretion to the Minister’s delegate. The court argued that a literal reading would be inconsistent with Parliament's intention, a purposive interpretation was possible and mandated, and such a literal reading would render the regulation invalid. Therefore, the court held that the Tribunal's decision was flawed and required setting aside and remitting the matter back to the Tribunal for proper consideration.

The orders of the court included allowing the application for judicial review, setting aside the Tribunal's decision, and remitting the matter back to the Tribunal. Additionally, the court ordered that the applicant pay the respondent’s costs for the first hearing day, with the respondent paying the remainder of the applicant’s costs. The applicant was also granted liberty to apply for an order that his solicitor pay the costs of the first hearing day if necessary.