1923924 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant, who held a Student visa, had ceased enrolment in a registered course. The Tribunal was required to determine whether the applicant had breached a condition of their visa and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition requires a student visa holder to be enrolled full-time in a registered course and to maintain satisfactory course progress and attendance. The applicant's visa was cancelled on the basis that they were not enrolled in a full-time registered course between 26 July 2018 and 16 July 2019, which constituted a failure to comply with condition 8202(2)(a).

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2)(a) by not being enrolled in a full-time registered course. In considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's original purpose of study in Australia, their claimed compelling need to remain, the extent of their compliance with other visa conditions, and the hardship that might be caused by cancellation. While acknowledging the applicant's financial difficulties and desire to study, the Tribunal was not satisfied that the applicant had a compelling need to remain in Australia, nor that they had no other options. The Tribunal also noted that the applicant's primary concern appeared to be retaining their Student visa to avoid reapplication for work and study rights in connection with a Protection visa application. The Tribunal concluded that the failure to maintain enrolment was a fundamental breach of a student visa and weighed against the applicant.

The Tribunal affirmed the decision to cancel the applicant's visa.