1708786 (Migration)

The applicant, a holder of a Subclass 572 Vocational Education and Training Sector visa, sought review of a decision to cancel her visa. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The applicant did not dispute that she had not been enrolled in a registered course since 13 May 2016, leading to a finding that she had not complied with condition 8202(2).

The legal issue before the Tribunal was whether, having found a breach of a visa condition, it should exercise its discretion to cancel the applicant's visa. While the Act and Regulations do not specify mandatory considerations for this discretion, the Tribunal had regard to government policy guidelines and matters raised by the applicant. These included the purpose of the visa, compelling reasons to remain, the extent of compliance, potential hardship to the visa holder and family, extenuating circumstances for the breach, and the impact on children.

The Tribunal considered the applicant's extensive study history in Australia since 2012, including completed qualifications and her current enrolment in a Diploma of Early Childhood Education and Care. It also acknowledged extenuating circumstances beyond her control for the breach, although it noted that a student visa is not a de facto right of residency based on family relationships. Balancing these factors, including the impact on her Australian citizen daughter, the Tribunal determined that it would not exercise its discretion to cancel the visa. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.