Chumba (Migration)

The applicant, Chumba, sought judicial review of a decision by the Minister for Immigration and Border Protection to cancel her Student (Temporary) (Class TU) Subclass 573 visa. The cancellation was based on her failure to maintain enrolment in a registered course and to pay her course fees. Chumba contended that these failures were due to circumstances beyond her control, specifically the financial difficulties her ex-husband experienced due to injuries, which prevented him from paying her fees, and her subsequent reconciliation with him and change of career aspirations. The matter was heard by O'Loughlin J in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the Minister's delegate erred in law by failing to consider, or adequately consider, the applicant's submission that the grounds for cancellation were due to circumstances beyond her control. This involved determining whether the delegate had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) concerning visa cancellation and the discretion to waive cancellation on compassionate or compelling grounds.

O'Loughlin J found that the delegate's decision contained a jurisdictional error. The delegate's reasons did not demonstrate that the applicant's submissions regarding her ex-husband's injuries, the reconciliation, and her subsequent change of career plans had been considered. The delegate's focus was solely on the factual basis for cancellation, without engaging with the applicant's explanation for those facts. The Court reiterated the principle that a delegate must genuinely consider all relevant submissions made by an applicant, particularly those relating to circumstances beyond their control, when exercising the power to cancel a visa.

The Court ordered that the decision under review be set aside.