Dhillon (Migration)

This matter concerned an appeal by an applicant, a citizen of India, against the cancellation of his Subclass 573 (Higher Education Sector) student visa. The applicant had been granted the visa to study for a Bachelor of Information Technology but subsequently changed his course of study and was later diagnosed with end-stage renal failure, requiring dialysis and a kidney transplant. The Administrative Appeals Tribunal (Cth) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion not to cancel the visa.

The primary legal issue was whether the applicant had failed to continue to satisfy the criteria for his visa, specifically condition 8516 which requires the holder to maintain enrolment in a qualifying course. The applicant admitted he had not been enrolled in a higher education sector course between July 2017 and March 2018. The Tribunal was therefore satisfied that the ground for cancellation under section 116(1)(b) of the *Migration Act 1958* (Cth) was made out.

Despite the existence of the cancellation ground, the Tribunal considered whether to exercise its discretion not to cancel the visa. The Tribunal had regard to the applicant's circumstances, including his serious and life-threatening medical condition, the extensive documentary evidence of his ill health, and the fact that the cancellation ground did not mandate cancellation under section 116(3). The Tribunal concluded that the factors weighing against cancellation outweighed those in favour, leading to the decision to set aside the cancellation. The Tribunal substituted a decision not to cancel the applicant's visa.