Xie (Migration)

The applicant, Ms. Xie, sought judicial review of the Minister's decision to cancel her Student (Temporary) (Class TU) visa (Subclass 500). The cancellation was based on the ground that Ms. Xie was not enrolled in a registered course, a requirement under the *Migration Regulations 1994* (Cth). The primary issue before the Federal Circuit and Family Court of Australia was whether the delegate of the Minister had properly exercised their discretion to cancel the visa, considering the circumstances surrounding the breach.

The court was required to determine whether the delegate had adequately considered all relevant factors when exercising the discretion to cancel Ms. Xie's visa. Specifically, the court examined whether the delegate had given sufficient weight to the mitigating circumstances presented by Ms. Xie, including her non-payment of fees due to significant medical expenses incurred by her grandmother, and her limited English language comprehension abilities, which may have contributed to her failure to understand the enrolment requirements.

In its reasoning, the court found that the delegate's decision to cancel the visa was unreasonable. The delegate had failed to properly consider the applicant's explanation for the breach, particularly the financial hardship caused by her grandmother's medical treatment and the impact of her language difficulties. The court reiterated the principle that a discretionary power to cancel a visa must be exercised having regard to all relevant circumstances, and that a failure to do so can render the decision invalid. The court concluded that the delegate had not properly balanced the seriousness of the breach against the applicant's personal circumstances.

The decision of the Minister to cancel Ms. Xie's visa was set aside.