Ishika (Migration)

This matter concerned an application by Ishika for review of a decision by the Department of Home Affairs to cancel her Student (Temporary) (Class TU) visa, subclass 500. The cancellation was based on the applicant's father having accidentally claimed a refund of the visa application charge, and the applicant failing to notify the Department of a change in her residential address.

The Tribunal was required to determine whether the ground for cancellation under section 116 of the *Migration Act 1958* (Cth) existed, and if so, whether the discretion to cancel the visa should be exercised. The legal issues revolved around whether the accidental refund of the visa application charge constituted a failure to pay the charge, and whether the failure to notify a change of address were sufficient grounds for cancellation.

The Tribunal found that while a ground for cancellation under section 116 existed, it did not mandate cancellation under section 116(3). The Tribunal considered the applicant's circumstances, including that she had completed her studies and had a compelling need to remain in Australia. Crucially, the Tribunal accepted evidence that the refund of the visa application charge was unintentional, and that the applicant would not jeopardise her studies for a small sum. The Tribunal also noted the applicant had complied with most visa conditions, including condition 8202.

The Tribunal set aside the decision to cancel the visa, exercising its discretion not to cancel the visa given the unintentional nature of the refund and the applicant's overall compliance with her visa obligations.