JERUTO (Migration)

This matter concerned the review of a decision by the Department of Home Affairs to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant, Jeruto, had been granted the visa to study in Australia. The Department initiated cancellation proceedings on the grounds that the applicant had failed to comply with visa condition 8202(2)(a) by ceasing to be enrolled in a registered course for a period of approximately five months. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal first considered whether the ground for cancellation under s 116(1)(b) of the *Migration Act 1958* (Cth) was established. This required determining if the applicant had failed to comply with a condition of her visa, specifically condition 8202(2)(a) which mandates enrolment in a registered course. The Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case, including the applicant's explanation for her non-compliance and any mitigating factors.

The applicant contended that her non-compliance was due to compassionate and compelling circumstances, namely severe mental stress and anxiety stemming from her parents' ill health in Kenya. She also explained difficulties with online enrolment and a college break. While acknowledging the applicant's stated difficulties, the Tribunal found that the ground for cancellation was established. In exercising its discretion, the Tribunal weighed the seriousness of the breach against the applicant's circumstances. Despite the applicant's submissions regarding her intention to return to Kenya and contribute to the community, the Tribunal concluded that, on balance, the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Class TU visa.