Wanjiru (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 572 Vocational Education and Training Sector visa of the applicant, Mr. Wanjiru. The dispute arose because the applicant was not enrolled in a registered course of study, thereby breaching condition 8202 of his visa. The applicant contended that the circumstances leading to this breach were beyond his control, specifically citing financial difficulties and family medical emergencies.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. The evidence indicated that the applicant had ceased to be enrolled in a registered course of study from 16 November 2016 due to non-payment of fees. This satisfied the initial ground for cancellation. However, the Tribunal then had to consider the applicant's response to the Notice of Intention to Consider Cancellation, which detailed significant personal and financial hardships, including his son's hospitalisation and the cessation of financial support from his brother-in-law following a divorce.

In its reasoning, the Tribunal acknowledged that while the ground for cancellation was made out, it was not a mandatory cancellation. The Tribunal carefully considered the applicant's explanation for his non-compliance, noting the compassionate and compelling circumstances, such as his son's medical treatment and the subsequent financial strain. The Tribunal also took into account the applicant's efforts to find work and his intention to re-enrol in a course. Weighing these factors against the breach of the visa condition, the Tribunal concluded that the circumstances as a whole did not warrant the cancellation of the visa.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 572 visa.