SUN (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of SUN (Migration), concerning the cancellation of a Student (Temporary) (Class TU) visa, subclass 500. The applicant, SUN, had been granted this visa to undertake a registered course of study. However, the Department of Home Affairs cancelled the visa on the grounds that SUN was not enrolled in a registered course, a condition of the visa. SUN contended that this non-compliance was due to significant mental health challenges, which led to her ceasing her studies. She subsequently resumed her studies and argued that she was a genuine student.

The primary legal issue before the Tribunal was whether the cancellation of SUN's visa was justified, particularly in light of her mental health issues and her subsequent re-enrolment and continued pursuit of her studies. The Tribunal was required to assess whether SUN met the criteria for a genuine student and whether the circumstances surrounding her initial non-compliance warranted the cancellation of her visa, or if there were grounds for it to be set aside.

In its reasoning, the Tribunal acknowledged the impact of SUN's mental health on her ability to comply with visa conditions. It found that SUN had demonstrated a genuine intention to study by resuming her course and that her prior non-compliance was a direct consequence of her health condition, rather than a lack of genuine student intent. The Tribunal applied the principles of assessing genuine student status and considered the discretion available to it in reviewing the Department's decision, taking into account the applicant's personal circumstances.

The Tribunal set aside the decision under review and substituted a new decision, remitting the matter to the Department of Home Affairs with a direction that the visa cancellation be withdrawn and that SUN be permitted to continue her studies.