CHEW (Migration)

The applicant, CHEW, sought judicial review of a decision by the Minister for Immigration and Border Protection to cancel her Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The cancellation was based on the ground that she was not enrolled in a registered course, a requirement for her visa. The Administrative Appeals Tribunal had affirmed the Minister's decision.

The primary legal issue before the Federal Circuit Court was whether the Tribunal erred in law by failing to properly consider the applicant's submissions regarding the discretion to waive the cancellation, particularly in light of the "vicissitudes of life" and the fact that her non-enrolment period exceeded 12 months. The court also considered whether the Tribunal's finding that the applicant's non-enrolment constituted a fundamental breach of her visa conditions was legally sound.

Her Honour, Judge Banfield, found that the Tribunal had indeed failed to adequately consider the applicant's submissions concerning the exercise of discretion. While acknowledging that a non-enrolment period of more than 12 months could be considered a fundamental breach, the court held that the Tribunal was still required to engage with the specific circumstances presented by the applicant, including the "vicissitudes of life," when determining whether to exercise its discretion to waive cancellation. The Tribunal's approach was found to be overly rigid and did not demonstrate a proper consideration of all relevant factors.

The court set aside the Tribunal's decision and remitted the matter to the Tribunal to be heard and determined according to law.