Lotika (Migration)

This matter concerned an appeal by an applicant against the cancellation of her Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant had failed to maintain enrolment in a specified course due to unsatisfactory academic progress, which led to the cancellation of her visa. The applicant's circumstances included depression stemming from separation from her family, who had relocated to Australia, and family pressure to pursue a Bachelor of Business degree rather than her preferred Bachelor of Hospitality.

The primary legal issue before the Tribunal was whether, having established grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth), the applicant's visa should be cancelled, considering all relevant circumstances. This involved a discretionary assessment of whether to proceed with cancellation, taking into account factors beyond the initial grounds for cancellation.

The Tribunal reasoned that while the ground for cancellation was made out, it did not mandate cancellation under section 116(3). The Tribunal considered the applicant's evidence regarding her family's relocation to Australia, her lack of support in her home country, and her struggles with depression and academic pressure. It also noted her father's evidence and the documentation submitted, including offers of enrolment in hospitality courses at a different institution. The Tribunal concluded that, on balance, the circumstances warranted setting aside the cancellation decision.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 573 visa.