1609893 (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant whose Higher Education Sector visa (Subclass 573) was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994 by ceasing to study and failing to maintain enrolment in a registered course. The applicant had initially come to Australia to study a media and arts course, but stopped this in October 2014. She then sought to transfer to a psychology course but was refused a release letter from her original provider.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to make satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1)(b) of the Migration Act 1958. The applicant's visa was cancelled on the grounds that she was not enrolled in a registered course, a fact confirmed by PRISMS records and admitted by the applicant.

The Tribunal found that the applicant had not complied with condition 8202(2) as she had not been enrolled in a registered course from January 2015 until the cancellation of her visa in June 2016. Despite this prolonged period of non-enrolment, the applicant had done little to rectify her situation, having only studied for approximately eight months since arriving in Australia in February 2014. The Tribunal noted the applicant's explanation that she had intended to return to Bhutan but changed her mind, and that she had not informed her parents of her study cessation or marital separation. Considering the applicant's limited study history and the extended period of inactivity, the Tribunal concluded that she had not demonstrated any genuine intention to return to studies in Australia.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.