Fitzroy (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Student (Temporary) (Class TU) visa, subclass 500 (Student), held by Mr Fitzroy. The cancellation was based on the ground that Mr Fitzroy was not enrolled in a registered course. Mr Fitzroy sought review of this decision, arguing that he was genuinely mistaken about his enrolment status and that the cancellation would cause hardship to his wife and her mother.

The Tribunal was required to determine whether the cancellation of Mr Fitzroy's visa was justified under the Migration Act 1958 (Cth). This involved considering the discretionary power to cancel the visa, and whether the circumstances presented by Mr Fitzroy warranted the exercise of that discretion in his favour. The Tribunal also had to assess the genuineness of his mistaken belief regarding his enrolment and the extent of the hardship that would befall his wife and her mother if the cancellation were upheld.

In its reasoning, the Tribunal acknowledged that while Mr Fitzroy had indeed failed to maintain enrolment in a registered course, which was a valid ground for cancellation, it was persuaded by his explanation that this was due to a genuine mistake. The Tribunal found that Mr Fitzroy had taken steps to rectify the situation once he became aware of the error. Furthermore, the Tribunal gave significant weight to the evidence of hardship that would be caused to his wife and her mother, who relied on him. Applying the principles of administrative review, the Tribunal concluded that it was not in the public interest to proceed with the cancellation.

Consequently, the Tribunal set aside the decision under review and substituted a new decision to not cancel Mr Fitzroy's visa.