BOONLEE (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose because the applicant failed to maintain enrolment in a course of study as required by her visa conditions. The Tribunal, constituted by Wendy Banfield, was tasked with determining whether the applicant had breached condition 8516 of the Migration Regulations 1994 and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether the applicant had complied with condition 8516, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa. The applicant did not dispute that she had failed to maintain her enrolment in the higher education sector, thereby establishing a ground for cancellation under section 116(1) of the Migration Act 1958. The Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to factors such as the purpose of the applicant's stay, her compliance with other visa conditions, and the potential hardship resulting from cancellation.

The Tribunal found that while the applicant had breached condition 8516, the grounds for cancellation were made out. However, in exercising its discretion, the Tribunal gave weight to the applicant's compliance with other visa conditions and acknowledged the financial hardship she would suffer if her studies were interrupted. The Tribunal also considered that the applicant was a genuine student with aspirations to use her Australian qualifications to advance her career and support her family. Crucially, the Tribunal noted that the guidelines suggest a visa should not be cancelled if the circumstances leading to the ground for cancellation were beyond the visa holder's control, and it accepted that the applicant's inability to cope with higher education at the relevant time was due to her divorce and her father's ill health.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 573 visa.