1800824 (Migration)

This matter concerned an appeal against the cancellation of the applicant's Subclass 500 (Student) visa. The visa was cancelled by the Minister on the grounds that the applicant had failed to comply with a condition of their visa, specifically condition 8202, which requires a student visa holder to be enrolled in a registered course. The applicant had commenced a Bachelor of [Subject 1] in November 2016, but their confirmation of enrolment was cancelled in March 2017, and they remained unenrolled in a full-time registered course until the visa cancellation on 4 January 2018. The applicant acknowledged that the grounds for cancellation existed.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa should be affirmed. This required the Tribunal to determine if the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, to consider whether the discretion to cancel the visa should be exercised in the applicant's favour. The Tribunal was required to consider all relevant circumstances, including matters raised by the applicant and relevant departmental policy.

The Tribunal found that the ground for cancellation was established, as the applicant had not been enrolled in a registered course for approximately nine months prior to the cancellation. In considering the exercise of discretion, the Tribunal examined the applicant's study history, their stated intention to gain skills for a hotel business in India, and their relationship with an Australian citizen. The Tribunal also considered the applicant's claims of medical issues and mental health problems, including anxiety, depression, and [medical condition 2], which they stated arose from a relationship breakdown. However, the Tribunal gave limited weight to the evidence regarding the relationship breakdown due to a lack of corroboration, and found that the medical issues, while accepted from mid-2018, had limited relevance to the cancellation decision which occurred earlier. The Tribunal concluded that the applicant did not have a compelling need to remain in Australia, noting the temporary nature of student visas and concerns about the applicant's prolonged onshore stay.

The Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.