1714209 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 572. The applicant had been granted the visa to study in Australia but was found to have breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a registered course. The applicant accepted that he was not enrolled in a course between 26 September 2016 and 7 June 2017, the period leading up to the Notice of Intention to Consider Cancellation.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of his visa, which requires a student visa holder to be enrolled in a registered course and to maintain 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, having regard to the circumstances of the case.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course. In considering the exercise of discretion, the Tribunal noted the applicant's stated desire to remain in Australia due to having friends, work, and a social life, and his apprehension about returning to Thailand. However, the Tribunal concluded that these reasons did not constitute a powerful or convincing need to remain in Australia, which was the applicant's original purpose for travel. While acknowledging the potential hardship of visa cancellation, including the risk of becoming an unlawful non-citizen and facing limitations on future visa applications, the Tribunal determined that these were intended consequences of the legislation and not sufficient grounds to override the cancellation. The Tribunal affirmed the decision to cancel the applicant's visa.