Gitemi (Migration)

The applicant, Mr. Gitemi, 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, a ground for cancellation under the *Migration Act 1958* (Cth). The applicant had returned to Kenya to collect his child following the cessation of a relationship, and consequently, family financial support was no longer available to him.

The primary legal issue before the Federal Court was whether the delegate's decision to cancel the applicant's visa was affected by jurisdictional error. Specifically, the court considered whether the delegate had failed to properly consider the applicant's submissions regarding his personal circumstances, including his return to Kenya and the resulting financial difficulties, when exercising the power to cancel the visa. The court also examined whether the delegate had adequately considered the best interests of the child, as required by relevant provisions of the *Migration Act*.

Justice O'Loughlin found that the delegate's decision-making process was flawed. The delegate had failed to give sufficient weight to the applicant's explanation for his enrolment cessation and the impact of his personal circumstances on his ability to continue his studies. The court held that a proper consideration of these factors was essential for a lawful exercise of the cancellation power. Consequently, the delegate's decision was affected by jurisdictional error.

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