Zhang (Migration)

This matter concerned an appeal by the applicant, Mr. Zhang, against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The Federal Circuit Court had remitted the matter for reconsideration by the Tribunal. The primary ground for cancellation was that Mr. Zhang was not enrolled in a registered course of study, thereby failing to comply with a condition of his visa.

The Tribunal was required to determine whether Mr. Zhang had complied with his visa conditions and, if not, whether the discretion to cancel his visa should be exercised. This involved considering the applicant's genuine intention to complete his studies in Australia, the degree of hardship that cancellation might cause, and the circumstances that led to the ground for cancellation, including his family issues and mental health concerns. The Tribunal also had to assess the opportunity for Mr. Zhang to apply for a new student visa.

In its reasoning, the Tribunal acknowledged that Mr. Zhang had not complied with condition 8202(2) by not being enrolled in a registered course for a period. However, it then considered the exercise of discretion regarding cancellation. The Tribunal found that Mr. Zhang had a compelling need to remain in Australia to pursue his studies, evidenced by his continued attempts to find and enrol in appropriate courses. It accepted his evidence that he was now enrolled in a Bachelor of Accounting course and was likely to complete it, particularly given his improved psychological condition and strong motivation. The Tribunal also gave weight to the significant financial and emotional hardship his family would face if he returned to China without a qualification, noting the substantial investment made in his education and cultural expectations. While the breach of visa conditions was significant, the Tribunal considered that there were no other apparent breaches.

Ultimately, the Tribunal decided to set aside the decision under review. It found that Mr. Zhang had demonstrated a genuine intention to study and had taken steps to address his personal circumstances, including his mental health. The Tribunal concluded that it was appropriate to allow him the opportunity to complete his chosen course of study.