Tang (Migration)

This matter concerned an application by a student visa holder to set aside a decision to cancel her Subclass 573 Higher Education Sector visa. The dispute arose because the applicant was found not to be enrolled in a relevant course of study, which constituted a breach of Condition 8516 of the Migration Regulations 1994. The case was heard by Colin Huntly Dr.

The primary legal issue before the Tribunal was whether the applicant had breached Condition 8516, which requires a visa holder to continue to satisfy the criteria for the grant of their visa, including maintaining enrolment in a course of study. If a breach was established, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the applicant had indeed breached Condition 8516, acknowledging that this was an "unintentional mistake." However, the Tribunal determined that the cancellation was not mandatory under section 116(3) of the Act. In exercising its discretion, the Tribunal considered several factors, including the applicant's original intention for studying in Australia, her general compliance with other visa conditions, and her subsequent enrolment in a pre-qualification course. Crucially, the Tribunal also took into account significant medical evidence, not available to the original decision-maker, demonstrating that the applicant had experienced chronic and uncontrollable mental health challenges that contributed to her non-compliance.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it. This outcome was based on the Tribunal's assessment that the applicant would face significant hardship if the visa were cancelled, particularly in light of her demonstrated compliance in other respects and the extenuating medical circumstances.