Qi (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the student visa of Mr. Yongge Qi. The delegate of the Minister for Home Affairs had cancelled Mr. Qi's visa on the grounds that he had breached condition 8202 of the Migration Regulations 1994 by failing to be enrolled in a full-time registered course. Mr. Qi contended that he had not been properly notified of the cancellation decision and that the application for review was therefore not out of time.

The Tribunal was required to determine whether Mr. Qi had breached condition 8202 of his visa and, if so, whether the discretion to cancel his visa should be exercised. The Tribunal also considered the preliminary issue of whether it had jurisdiction to review the decision, given the timing of Mr. Qi's application for review and his assertion of not receiving proper notification of the cancellation.

The Tribunal found that Mr. Qi had indeed failed to comply with condition 8202(2)(a) as he was not enrolled in a full-time registered course. However, in considering the exercise of discretion to cancel the visa, the Tribunal had regard to a range of factors, including the circumstances in which the ground for cancellation arose. The Tribunal was presented with evidence suggesting Mr. Qi was a victim of unlawful and exploitative employment arrangements, including the confiscation of his passport and the submission of a voluntary visa cancellation request without his authorisation, which he claimed was orchestrated by his employer. These circumstances were considered extenuating and beyond Mr. Qi's control.

Ultimately, the Tribunal concluded that the decision to cancel Mr. Qi's visa should be set aside. This outcome was influenced by the finding that Mr. Qi had not been properly notified of the cancellation decision, thus establishing jurisdiction, and by the significant extenuating circumstances surrounding his non-compliance with visa conditions, which indicated he was exploited and acted under duress.