Dai (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Ms Dai, a student visa holder (Subclass 573 Higher Education Sector visa), who sought review of the Minister's decision to cancel her visa. The cancellation was based on Ms Dai's failure to comply with her visa conditions, specifically by not being enrolled in a registered course. Ms Dai contended that the cancellation would cause her and her child undue hardship, citing a difficult pregnancy, her own medical conditions, and those of her child.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel Ms Dai's visa was the correct or preferable decision. This required the Tribunal to assess whether the circumstances presented by Ms Dai constituted "undue hardship" within the meaning of the relevant migration legislation, and if so, whether this hardship warranted setting aside the cancellation decision. The Tribunal also had to consider the best interests of the child in its determination.

In its reasoning, the Tribunal acknowledged the medical evidence presented regarding Ms Dai's and her child's health conditions. However, it found that the evidence did not establish that the hardship Ms Dai would suffer upon cancellation of her visa was "undue" in the context of the Migration Act 1958 (Cth). The Tribunal noted that while the situation presented difficulties, it did not reach the threshold of exceptional or extreme hardship that would justify overriding the Minister's decision to cancel the visa for a breach of conditions. The Tribunal ultimately affirmed the decision to cancel Ms Dai's visa.