Hewawasam Sarukkalige (Migration)

The applicant, Hewawasam Sarukkalige, sought judicial review of a decision by the Minister for Immigration and Border Protection to affirm the cancellation of her 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 for a period of eight months, a breach of a condition attached to her visa.

The primary legal issue before the court was whether the delegate's decision to affirm the cancellation was affected by jurisdictional error. This required the court to consider whether the delegate had properly taken into account all relevant considerations, including the applicant's explanations for her non-enrolment and the steps she had taken to rectify the situation, and whether the delegate had failed to consider any relevant considerations.

The delegate had affirmed the cancellation, finding that the applicant had not demonstrated that she had a genuine intention to maintain enrolment and that her explanations for non-enrolment, including family illness, financial difficulties, and lack of motivation, did not constitute compelling reasons to set aside the cancellation. The delegate also noted that while the applicant had taken steps to re-enrol, these steps were taken after the cancellation notice had been issued. The court was required to determine if this assessment was reasonable and free from error.

The court affirmed the delegate's decision, finding no jurisdictional error. The delegate had considered the applicant's submissions and the reasons for her non-enrolment, but ultimately concluded that these did not outweigh the seriousness of the breach of the visa condition. The delegate's reasoning was found to be open to them on the evidence before them.