Dang (Migration)

This matter concerned an appeal by a visa applicant, identified as Dang, against the cancellation of her Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose because the applicant failed to attend a scheduled hearing before the Tribunal, and the Minister had cancelled her visa on the grounds that she had not continued to satisfy the primary criteria for its grant, specifically by failing to maintain enrolment in the higher education sector. The case was heard by Mark Bishop, a Member of the Tribunal.

The Tribunal was required to determine two primary legal issues. Firstly, whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, which involved assessing whether the applicant had complied with condition 8516 of her visa, requiring her to continue to satisfy the primary criteria for the visa, including maintaining enrolment in a higher education course. Secondly, if the ground for cancellation was established, the Tribunal had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

In reaching its decision, the Tribunal found that the applicant had failed to maintain her enrolment in the higher education sector, thereby breaching visa condition 8516. This conclusion was based on the applicant's failure to attend the scheduled hearing, despite receiving an invitation and SMS reminders, and the absence of any explanation for this non-attendance or for her failure to adhere to enrolment conditions. The Tribunal then considered its discretion to cancel the visa. It noted the absence of any information from the applicant regarding a compelling need to remain in Australia, the hardship that cancellation might cause, or any mitigating circumstances. While acknowledging the applicant's apparent cooperation with the Department and Tribunal in other dealings, the Tribunal found the period of breach to be significant and gave it considerable weight. The Tribunal concluded that, on the totality of the circumstances, the visa should be cancelled.

Consequently, the Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.