CERIOLI (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to cancel the Subclass 500 (Student) visa of an Italian citizen. The applicant had been granted the visa after arriving in Australia on previous visas. The delegate's decision to cancel the visa was based on the belief that the applicant had breached condition 8105 of his visa by working more than the permitted hours.

The primary legal issue before the Tribunal was whether the applicant had, in fact, worked in breach of his student visa conditions. This required the Tribunal to assess the evidence presented by both the applicant and the Department of Home Affairs regarding the applicant's employment hours. The Tribunal also considered the broader circumstances surrounding the cancellation decision, as mandated by section 116 of the Migration Act 1958 (Cth), which allows for visa cancellation if certain grounds are met, but requires consideration of all relevant circumstances before proceeding.

The Tribunal found that the applicant had provided substantial evidence to demonstrate compliance with his visa conditions. This evidence included payslips, bank statements, and a letter from his employer confirming that he did not work more than 40 hours per fortnight. The Tribunal gave significant weight to this documentary evidence, as well as the applicant's oral testimony. The Tribunal was satisfied that the applicant had worked in accordance with his visa conditions and that his academic progress, while noted as "modest," did not provide grounds for cancellation.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel the visa.