Dalby-Jeffreys (Migration)

This matter concerned an appeal by the applicant against the cancellation of her Student (Temporary) (Class TU) visa, subclass 500. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation (NOICC) on the grounds that the applicant had ceased to be enrolled in a registered course from 23 March 2022, thereby breaching condition 8202 of her visa. The applicant did not respond to the NOICC. The Administrative Appeals Tribunal (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 considered evidence presented by the applicant, including documents relating to her previous enrolment and completion of a Certificate III, her mental health history including appointments with a psychiatrist, her grandmother's serious medical condition and treatment in Canada, and a new offer of enrolment for a Bachelor of Education. The applicant's representative submitted that difficulties with online learning due to ADHD, the breakdown of a significant relationship, and her grandmother's illness had severely impacted her mental health and academic performance. The representative argued these personal difficulties constituted compelling circumstances akin to those considered in previous cases such as *Wei* [2003] MRTA 8377, *Chen v Minister for Immigration and Multicultural and Indigenous Affairs* [2005] FCA 229, and *Paduano v MIMIA* (2005) 143 FCR 204, which demonstrated that personal issues could be relevant to visa compliance.

Despite acknowledging the applicant's personal challenges and her passion for early childhood education, the Tribunal found that the breach of condition 8202 did not occur in circumstances beyond the applicant's control. The Tribunal noted the applicant's failure to respond to the NOICC. On balance, and after considering all circumstances, the Tribunal concluded that the ground for cancellation under section 116(1)(b) was established and that the discretion to cancel the visa should be exercised. The Tribunal affirmed the decision to cancel the applicant's visa.