Thi Khanh Le (Migration)

The Administrative Appeals Tribunal considered the case of Thi Khanh Le, who sought review of the Minister's decision to cancel her Subclass 573 Higher Education Sector student visa. The dispute centred on whether the grounds for cancellation existed and, if so, whether the Minister should exercise discretion to cancel the visa.

The Tribunal was required to determine if the applicant was a "genuine student" within the meaning of section 116(1)(fa)(i) of the Migration Act 1958 (Cth), or if she had engaged in conduct not contemplated by her visa under section 116(1)(fa)(ii). If these grounds were established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including government policy.

The Tribunal found that the ground for cancellation existed because the applicant had failed the only course she completed and her subsequent enrolments in a Diploma of Business and a Bachelor of Business were cancelled due to non-commencement of studies. Furthermore, the study she undertook after a significant period of inactivity was not at a level required for her visa. The Tribunal gave no weight to the applicant's claim of poor assistance from her migration agent, as the responsibility for meeting visa requirements rested with her. While acknowledging the potential hardship, the Tribunal concluded that there were no significant considerations weighing against cancellation, and therefore affirmed the decision to cancel the visa.