Lu (Migration)

The Administrative Appeals Tribunal considered the cancellation of Mr Lu's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Visa). The dispute centred on whether the grounds for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) were established, and whether the discretion to cancel the visa should be exercised, despite the potential hardship to Mr Lu. A further issue was the validity of the notice of cancellation, with Mr Lu's representative arguing that an incorrect visa grant date in the record of decision meant the visa had not been validly cancelled.

The Tribunal was required to determine if Mr Lu's presence in Australia posed a risk to the health, safety, or good order of the Australian community or a segment of it, as stipulated by section 116(1)(e). It also had to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised, taking into account all relevant circumstances. Finally, the Tribunal needed to assess whether any defect in the notification of the cancellation decision invalidated the decision itself, particularly in light of section 127(3) of the Act.

The Tribunal found that the ground for cancellation under section 116(1)(e) was established. While acknowledging the incorrect visa grant date in one part of the decision record, the Tribunal noted that the notice of intention to cancel and the separate notification of the cancellation decision both contained the correct visa grant date, or a date that would not cause confusion given Mr Lu held only one Subclass 573 visa. Crucially, the Tribunal applied section 127(3) of the Act, which states that a failure to give notification of a decision does not affect the validity of the decision. In exercising its discretion, the Tribunal considered Mr Lu's personal circumstances, including his family illness and academic record, as well as evidence from a friend. However, it concluded that these factors did not outweigh the grounds for cancellation.

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