NYAOMA (Migration)

This matter concerned an appeal by the applicant, NYAOMA, against the cancellation of her Student (Temporary) (Class TU) visa, Subclass 500 (Student). The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant's visa should be cancelled on the ground that she was not a genuine student, specifically in relation to her enrolment status. The Tribunal was required to consider the circumstances that led to the ground for cancellation arising and to exercise its discretion regarding whether to cancel the visa.

The Tribunal found that the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) was established, as the applicant had not complied with a condition of her visa by ceasing to be enrolled in a registered course for a period. While the Tribunal did not accept that the applicant took reasonable steps to manage her enrolment or that the circumstances of her dis-enrolment were beyond her control, it placed significant weight on her subsequent actions. The Tribunal noted that the applicant had since completed a Diploma and had plans and financial capacity to complete an Advanced Diploma, indicating a genuine intention to study.

The Tribunal ultimately set aside the decision to cancel the applicant's visa, exercising its discretion not to cancel the visa based on the applicant's subsequent actions and genuine commitment to completing her studies.