Srivastava (Migration)

The applicant, Mr Srivastava, sought judicial review of a decision by the Minister for Immigration and Border Protection to cancel his Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The cancellation was based on the applicant's failure to maintain enrolment in a registered course, specifically his low result in a foundation course and non-commencement of his degree course.

The primary legal issue before the court was whether the Minister's decision to cancel the applicant's visa was affected by jurisdictional error. This required the court to consider whether the Minister had properly exercised the discretion afforded to them under the relevant migration legislation, taking into account all relevant considerations and disregarding irrelevant ones. The court also had to determine if the applicant's circumstances, including his efforts to secure future study and work, constituted a sufficient basis for the Minister to exercise discretion in his favour and not cancel the visa.

Justice Bradford found that the Minister had failed to properly consider all relevant factors when making the cancellation decision. While the applicant had not maintained enrolment in his initial course, he had subsequently completed a diploma course and enrolled in a different degree program. Furthermore, the applicant had been working to earn money to pay for his studies and had undertaken internships in his home country, demonstrating a genuine intention to pursue his educational goals. The Minister had not adequately considered these mitigating circumstances, nor the applicant's future study and work aspirations. Consequently, the decision under review was set aside.