Singh (Migration)

The applicant, Mr. Singh, sought judicial review of the delegate's decision to cancel his Student (Temporary) (Class TU) visa, subclass 573. The delegate had cancelled the visa under s 501(2) of the *Migration Act 1958* (Cth) on the grounds that Mr. Singh had failed to maintain enrolment in a registered course, a condition of his visa. Mr. Singh contended that he was unaware his enrolment had been cancelled due to financial difficulties and non-payment of fees, and that these circumstances constituted mitigating factors against the cancellation. The matter came before O'Loughlin J in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to cancel Mr. Singh's visa was affected by jurisdictional error. This required the Court to consider whether the delegate had adequately taken into account the mitigating circumstances presented by Mr. Singh, specifically his lack of awareness of the enrolment cancellation and his financial hardship, when exercising the power to cancel the visa under s 501(2). The Court also had to determine if the delegate's assessment of these factors was reasonable and lawful.

O'Loughlin J found that the delegate had failed to properly consider the mitigating factors put forward by Mr. Singh. The delegate's decision focused heavily on the breach of the enrolment condition without giving sufficient weight to Mr. Singh's explanation for the non-payment of fees and his subsequent lack of awareness of the cancellation. The Court held that a failure to adequately consider relevant mitigating circumstances could constitute jurisdictional error. Consequently, the delegate's decision to cancel the visa was set aside.