Wang (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, held by Ms. Wang. The dispute arose because Ms. Wang did not accept an offer of admission to a registered higher education course, experiencing difficulties in passing foundational English subjects, and subsequently returned to China due to family illness.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the visa should be cancelled in the exercise of the Tribunal's discretion. The Tribunal also considered the applicant's circumstances, including her difficulties with English proficiency, family illness, and her understanding of her visa obligations.

The Tribunal found that the ground for cancellation existed, but it was not a mandatory cancellation. In exercising its discretion, the Tribunal had regard to the applicant's stated intention to study in Australia and the emotional hardship she would suffer if unable to do so, although it found her testimony regarding her grandfather's health unreliable. The Tribunal accepted that the applicant's difficulties in improving her English and family problems contributed to her inability to maintain enrolment and deal with the notification of her visa status. While not finding the circumstances beyond her control, the Tribunal accepted she was upset and confused. The Tribunal was satisfied that the applicant did not intend to mislead the Department, but noted a lack of attention to visa requirements and a tendency to seek advice from unreliable sources. The Tribunal also considered the potential consequences of cancellation, including the need for a bridging visa, potential detention and removal, and the impact on future visa applications under Public Interest Criterion 4013, which would restrict her ability to lodge further visa applications for three years.

The Tribunal set aside the decision under review.