1730220 (Migration)

This matter concerned an appeal by the applicant, a former holder of a Student (Temporary) (Class TU) Subclass 573 visa, against the decision of the Minister to cancel her visa. The applicant's visa was cancelled on the grounds that she had failed to maintain enrolment in a registered course and had not commenced her studies, contrary to the conditions of her visa. The applicant contended that her failure to comply with these conditions was due to circumstances beyond her control, including issues with her education provider, personal health problems, and financial hardship.

The primary legal issue before the court was whether the Minister's decision to cancel the applicant's visa was affected by jurisdictional error. Specifically, the court was required to determine if the delegate, in considering the applicant's claims of extenuating circumstances, had failed to properly take into account all relevant considerations or had otherwise misapplied the law in reaching the cancellation decision. The court also considered whether the applicant had provided sufficient evidence to establish that her non-compliance was due to circumstances beyond her control, as contemplated by the relevant provisions of the *Migration Act 1958* (Cth) and associated regulations.

Her Honour, Hossen J, found that the delegate had failed to adequately consider the evidence presented by the applicant regarding her health issues and financial difficulties, and the impact these had on her ability to commence and maintain her studies. The court determined that the delegate's assessment of the applicant's claims was superficial and did not engage with the substance of the evidence provided. Consequently, the court concluded that the delegate's decision to cancel the visa was affected by jurisdictional error. The decision under review was set aside.