Kong (Migration)

This matter concerned an application by a holder of a Subclass 500 (Student) visa for review of a decision to cancel that visa. The ground for cancellation was that the applicant was not enrolled in a registered course, which contravened the conditions of her visa. The applicant had enrolled in an unregistered English language course, purportedly due to a misunderstanding of the English language proficiency requirements for her Master's course.

The Tribunal was required to determine whether the discretion to cancel the applicant's visa should be exercised, considering various factors including the applicant's intention to return to China if the visa were cancelled, the absence of any international obligations that would be breached by cancellation, and the fact that the visa was temporary. The Tribunal also considered other relevant matters, such as the applicant's financial capacity to support herself while studying, stemming from an insurance payout following her father's death.

The Tribunal reasoned that the applicant's genuine intention to study, coupled with an inadvertent error in her enrolment, weighed against cancellation. The applicant's stated intention to return to China if her visa were cancelled meant that factors such as becoming unlawful or detention were not relevant considerations. Similarly, international obligations and ties to Australia were not applicable given the temporary nature of the visa and the applicant's stated intention to depart. The Tribunal concluded that, on the totality of the circumstances, the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.