Lin (Migration)

The Administrative Appeals Tribunal reviewed a decision made by a delegate of the Minister for Home Affairs to cancel the Subclass 500 (Student) visa of a 21-year-old Chinese citizen. The visa had been granted on 5 November 2018, with an expiry date of 21 September 2023, permitting the applicant to reside in Australia for full-time study. The cancellation was based on the delegate's finding that the applicant had failed to comply with a visa condition requiring him to maintain enrolment in a registered course of study that would lead to a qualification at the same or a higher level than the course for which the visa was originally granted.

The Tribunal was required to determine two issues: first, whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 was established, meaning whether the applicant had indeed failed to comply with a visa condition; and second, if the ground was established, whether the applicant's visa ought to be cancelled. The relevant visa condition stipulated that the applicant must maintain enrolment in a registered course of study that, upon completion, would result in an Australian Qualifications Framework qualification at the same or a higher level than the course in relation to which the visa was granted.

In its determination, the Tribunal concluded that the delegate's decision to cancel the visa should be set aside. While the applicant's initial enrolment was in a higher-level course, this enrolment was subsequently cancelled by the education provider. The applicant then re-enrolled in another higher-level course with a different provider. The Tribunal found that the applicant had a genuine intention to study and that the circumstances did not warrant the cancellation of his visa.