YAN (Migration)

This matter concerned an appeal by YAN (the applicant) against the cancellation of her Student (Temporary) (Class TU) visa, Subclass 571. The Minister had cancelled the visa under section 116(1)(b) of the Migration Act 1958 (Cth), which permits cancellation if the visa holder does not comply with a condition of their visa. The specific condition in question was condition 8532(b), requiring the applicant, who was under 18 years of age, to maintain adequate arrangements for accommodation, support, and general welfare for the duration of her stay in Australia.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) was made out, and if so, whether to exercise its discretion to cancel the visa. The applicant, who was 17 years and 10 months old at the time of cancellation, had moved from her registered homestay accommodation and her Case Assistance for Overseas Students (CAAW) was subsequently cancelled. The applicant confirmed she had moved to alternative accommodation.

In its reasoning, the Tribunal found that the ground for cancellation under section 116(1)(b) was satisfied, as the applicant had not complied with the condition requiring adequate accommodation and welfare arrangements. However, the Tribunal then considered whether to exercise its discretion to cancel the visa, having regard to various circumstances. These included the applicant's stated purpose of studying in Australia, her academic performance as testified by her school principal, and the difficult circumstances she faced in her previous homestay, such as overcrowding, unhygienic conditions, and distance from her educational institution. The Tribunal noted that while the applicant should not have moved without proper approval, she had sought advice, informed relevant parties, and moved to an approved homestay within weeks.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. Accordingly, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.