Cheserem (Migration)

The Administrative Appeals Tribunal considered the case of Ms Cheserem, a holder of a Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The dispute concerned the cancellation of her visa on the ground that she had ceased to be enrolled in a Higher Education Sector course, thereby failing to continue to satisfy the primary criteria for her visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. The Tribunal noted that the ground for cancellation did not mandate a mandatory cancellation.

In considering its discretion, the Tribunal weighed various factors. It gave some weight in favour of not cancelling the visa to the fact that the applicant's purpose for travel was study and that she had not otherwise breached her visa conditions. However, it accorded significant weight in favour of cancellation to the prolonged period of non-compliance, which extended for nearly a year and a half. Against cancellation, the Tribunal considered the potential emotional hardship to the applicant's family in Kenya and the potential lessening of her earning capacity and financial hardship for her young family if she could not complete her studies. Crucially, the Tribunal accepted evidence that the applicant's failure to maintain enrolment was due to circumstances outside her control, specifically a car accident in August 2015 which resulted in a broken arm and a liver laceration. The applicant was described as being "well on her way" to completing her studies.

The Tribunal found that the ground for cancellation existed but ultimately set aside the decision to cancel the applicant's visa, exercising its discretion not to cancel.