Wang (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Wang (Migration), concerning the cancellation of a Higher Education Sector (Class TU) visa, Subclass 573 (Student (Temporary)). The applicant's visa was subject to cancellation due to non-commencement and subsequent cancellation of her enrolment in a higher education course, followed by enrolment in a lower-level vocational course.

The primary legal issue before the Tribunal was whether the applicant's visa should be cancelled, notwithstanding that the ground for cancellation did not mandate it under section 116(3) of the Migration Act 1958 (Cth). This required the Tribunal to exercise its discretion, considering various factors both for and against cancellation. The Tribunal was tasked with assessing the applicant's explanation for her non-compliance with visa conditions and determining the weight to be given to her subsequent difficult personal circumstances.

The Tribunal acknowledged the applicant's explanation that her initial higher education course at UTS was perceived as "too simple" and did not meet her expectations, leading to her enrolment in a Diploma. However, the Tribunal did not accept this explanation, noting the move from a higher education to a vocational course. The applicant also raised issues of sickness, alleged prejudice from lecturers, and social isolation at UTS, alongside a desire to transfer to UNSW. Further, she claimed to have failed foundation studies due to sickness and did not inform UTS staff of all her concerns. The Tribunal noted her admission of responsibility for maintaining her enrolment and visa compliance. Crucially, the Tribunal also considered significant personal difficulties experienced by the applicant from late 2017 onwards, including domestic violence and a serious motor vehicle accident resulting in injuries and medical procedures, for which documentary evidence was provided.

The Tribunal set aside the decision under review.