Kan v Minister for Immigration & Multicultural & Indigenous Affairs

The case of Kan v Minister for Immigration & Multicultural & Indigenous Affairs involved a student visa holder who had her visa cancelled on the grounds of non-compliance with attendance requirements. The applicant, who had commenced Foundation Studies at the University of Queensland, was issued a notice from her education provider that her attendance was 71% as at 9 November 2001. The Minister for Immigration subsequently issued a Notice of Intention to Consider Cancellation on the basis that this attendance rate breached condition 8202 of her visa. In response, the applicant submitted medical certificates in an attempt to explain her absences, attributing them to an ankle injury.

The key legal issues before the court were whether the applicant had indeed breached her visa conditions and, if so, whether the decision to cancel her visa was justified. The court needed to assess the validity of the medical certificates and the applicant's reasons for not submitting them at the time required by her education provider. It also had to consider whether the delegate's decision to give little weight to the medical certificates was reasonable.

The court found that the evidence demonstrated the applicant's attendance was 71%, and she had failed all of the three exams she sat. It held that the applicant had not provided sufficient evidence to explain why she did not submit the medical certificates to her education provider at the time of her absences, and thus her visa cancellation was justified. The court noted that the medical certificates were dated the same day as the Notice of Intention to Consider Cancellation was served and that the applicant had not offered a satisfactory explanation as to why she did not submit these certificates earlier. Therefore, the Tribunal affirmed the delegate's decision to cancel the applicant's visa.

The final orders of the court were to dismiss the application and make no order as to costs.