Liu (Migration)

This matter concerned an appeal by an applicant against the decision of the Minister to cancel her Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The applicant had been granted the visa on 11 April 2016. The Minister's delegate issued a Notice of Intention to Consider Cancellation on 14 March 2019, alleging a breach of visa condition 8516, which requires the visa holder to continue to satisfy the primary criteria for the grant of the visa. The applicant responded to the notice, explaining her difficulties with English language studies and personal health issues, including epilepsy.

The Tribunal was required to determine whether the applicant had breached condition 8516 of her visa and, if so, whether the discretion to cancel the visa should be exercised. The primary ground for cancellation was the applicant's alleged failure to continue to satisfy the primary criteria for the Subclass 573 visa, specifically relating to enrolment in a course of study as stipulated by Legislative Instrument 14/015. The applicant had failed an academic English course and had not progressed to her intended Bachelor of Business degree despite being in Australia for over three years.

The Tribunal found that the applicant had not satisfied the requirements of clause 573.231 of the Migration Regulations between 8 November 2017 and 22 November 2017, meaning she did not continue to be a person who would satisfy the primary criteria for the grant of her visa. Consequently, she had breached condition 8516. In considering the discretion to cancel, the Tribunal had regard to the applicant's stated purpose of study, her prolonged period in Australia without completing her intended course, and the various explanations provided for her lack of academic progress, including English language difficulties and epilepsy. The Tribunal concluded that the grounds for cancelling the visa outweighed the grounds for not cancelling it.

The Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa.