Zhao (Migration)

The applicant, Mr Zhao, sought judicial review of the decision by the Minister for Immigration and Border Protection to cancel his Subclass 573 Higher Education Sector visa. Mr Zhao had been granted this visa to undertake a course of study in Australia. The Minister's decision to cancel the visa was based on Mr Zhao's failure to comply with visa condition 8202, which requires a student visa holder to be enrolled in a registered course of study and to maintain enrolment. Mr Zhao had been notified of his enrolment cancellation but continued to study. The Administrative Appeals Tribunal had affirmed the Minister's decision.

The primary legal issue before the Federal Circuit Court was whether the Tribunal had erred in law by failing to adequately consider the consequences of the cancellation decision on Mr Zhao, specifically the hardship he would suffer. The court was required to determine if the Tribunal had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and associated regulations concerning the cancellation of student visas and the assessment of hardship.

The court found that the Tribunal had failed to give sufficient weight to the evidence of hardship presented by Mr Zhao. While acknowledging that the applicant had breached his visa conditions, the court held that the Tribunal's assessment of the consequences of cancellation was cursory and did not adequately engage with the specific circumstances of Mr Zhao's situation, including his continued study and the potential impact on his future educational and personal prospects. The court concluded that this failure constituted an error of law.

Consequently, the Federal Circuit Court set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal to be heard and determined according to law.