Xu (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to cancel the applicant's Student (Temporary) (Class TU) Subclass 573 visa. The applicant had failed to maintain enrolment in a registered course, thereby breaching condition 8202(2) of his visa and contravening section 116(1)(b) of the Migration Act 1958 (Cth). The core dispute revolved around whether the Tribunal should exercise its discretion to set aside the cancellation decision, considering the applicant's personal circumstances and the reasons for his non-compliance.

The Tribunal was required to determine whether there were sufficient extenuating circumstances to justify not cancelling the applicant's visa, despite his admitted non-compliance. This involved assessing the credibility of the applicant's explanations for his failure to maintain enrolment and weighing these against factors such as his psychological vulnerability, familial background, and the potential impact of cancellation. The Tribunal also had to consider the applicant's genuine intention to study and whether he had the capacity to overcome the issues that led to his non-compliance.

In its reasoning, the Tribunal acknowledged the applicant's failure to comply with his visa conditions, noting that his explanations regarding administrative errors were not credible, particularly in light of his mother's testimony. However, the Tribunal placed significant weight on the applicant's psychological issues, stemming from a domineering mother and a difficult family history, which were supported by a psychological assessment. The Tribunal found these circumstances to be extenuating, though not entirely beyond the applicant's control. Crucially, the Tribunal was satisfied that the applicant had the necessary support to continue his studies and that his mother's undertaking to return to China mitigated some of the concerns. On balance, the Tribunal concluded that the factors favouring non-cancellation outweighed those favouring cancellation.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Class TU visa. The Tribunal noted that the applicant would need to apply for a new visa if he wished to continue studying in Australia, as his current visa subclass was no longer available due to regulatory changes.