Yao (Migration)

This matter concerned Mr Jinjie Yao, who sought review of a decision to cancel his Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. Mr Yao had come to Australia in May 2014 to study a Bachelor of Computer Science. After completing an English course, he commenced a degree transfer course but failed two subjects in 2015, requiring him to repeat them. Consequently, he was advised by Bradford College that he needed to undertake an English program or re-sit his IELTS test before enrolling at the University of Adelaide. He sat the IELTS test once and then returned to China, where he sustained a foot injury. Upon his return to Australia, he decided to continue studying for IELTS, resulting in him not being enrolled in a registered course from 5 April 2016. A delegate of the Minister for Immigration cancelled his visa under section 116(1)(b) of the Migration Act 1958 for failing to comply with a visa condition.

The Tribunal was required to determine whether a ground for cancellation existed under section 116 of the Migration Act 1958, and if so, whether the visa should be cancelled. Specifically, the Tribunal considered Condition 8202 attached to Mr Yao's visa, which mandated enrolment in a registered course. The Tribunal found that Mr Yao was not enrolled in a registered course from 5 April 2016, thus establishing a ground for cancellation under section 116(1)(b).

Having found a breach of a visa condition, the Tribunal then considered whether the visa should be cancelled. While no specific matters were mandated for consideration under the Act or Regulations, the Tribunal had regard to all the circumstances of the case, including Mr Yao's account of events and the Department's Procedures Advice Manual. The Tribunal accepted that Mr Yao had failed subjects, needed to re-sit IELTS, and had returned to China where he broke his toe, providing medical evidence for this injury. However, the Tribunal did not accept that the injury prevented him from studying, nor did it accept that being told a course was full for the first semester would have prevented him from attempting it in the second semester. Despite the finding that a ground for cancellation existed, the Tribunal ultimately decided to set aside the cancellation decision and substitute a decision not to cancel the visa, indicating a favourable exercise of discretion based on the totality of the circumstances presented.