Jocquet (Migration)

This matter concerned a review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 572 Vocational Education and Training Sector visa. The applicant had been enrolled in a Certificate IV in Building Construction and a Diploma in Building and Construction. His education provider notified the Department that he had ceased his studies, leading to the cancellation of his visa. The applicant subsequently re-enrolled in a Certificate IV course after receiving a Notice of Intention to Cancel Visa (NOICC). The review was heard by Brendan Darcy, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the grounds for cancellation under s.116(1) of the Migration Act 1958 (Cth) existed, and if so, whether the Tribunal should exercise its discretion to cancel the visa. Specifically, the Tribunal had to determine if the applicant had complied with the conditions of his visa, particularly condition 8202 which requires a student visa holder to be enrolled in a registered course and maintain satisfactory course progress and attendance. The Tribunal also considered the applicant's original intention for travelling to and staying in Australia and whether his subsequent actions indicated he was a genuine student.

The Tribunal found that the grounds for cancellation under s.116(1) did exist, as the applicant had not complied with condition 8202 by ceasing his studies. However, in exercising its discretion, the Tribunal placed significant weight on the applicant's academic progress and perseverance since the cancellation of his visa, including completing a Certificate IV in Marketing and Communications and enrolling in a Diploma of Social Media. The Tribunal also considered the applicant's explanation for his non-compliance, noting there was no evidence of mischief or malice, and acknowledged the psychological impact of a physical assault he had suffered. Despite the applicant's non-compliance not being entirely beyond his control, the Tribunal concluded that cumulatively, the factors favoured reinstating the visa over its cancellation.

Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Class TU visa. The Tribunal noted that the applicant would need to apply for a new visa, as Subclass 572 visas were no longer available and had been replaced by Subclass 500 student visas.