Lu (Migration)

This matter concerned an appeal by the applicant, Ms Lu, against the cancellation of her Subclass 500 (Student) visa. The Minister had cancelled the visa under section 116(1)(b) of the Migration Act 1958 (Cth) on the grounds that Ms Lu had failed to comply with a condition of her visa. Specifically, Ms Lu had enrolled in an Advanced Diploma of Leadership and Management (AQF Level 6) after her Bachelor of Business (AQF Level 7) enrolment was cancelled, thereby failing to maintain enrolment in a course at the same or higher AQF level as that for which the visa was granted.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. The Tribunal found that Ms Lu had indeed failed to comply with visa condition 8202(2)(b) by enrolling in a lower-level course, thus satisfying the ground for cancellation under section 116(1)(b). The Tribunal then considered whether to exercise its discretion to cancel the visa, taking into account factors such as the purpose of Ms Lu's stay, her compliance with other visa conditions, the hardship that cancellation might cause, and the circumstances in which the ground for cancellation arose.

In its reasoning, the Tribunal acknowledged Ms Lu's stated intention to study in Australia and her claim of hardship due to her grandmother's death and resulting mental health issues. However, the Tribunal found that Ms Lu had not demonstrated a compelling need to remain in Australia, nor had she provided sufficient detail regarding her career plans or why she could not pursue her studies in Vietnam. While acknowledging that some hardship would be caused by the cancellation, the Tribunal concluded that these consequences were the intended outcomes of the legislation and did not outweigh the breach of the fundamental student visa condition.

Ultimately, the Tribunal affirmed the decision to cancel Ms Lu's Subclass 500 (Student) visa, finding that the circumstances as a whole warranted cancellation.