Adewole (Migration)

This matter concerned a review of a decision to cancel the Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector), held by the applicant, Ms. Adewole. The dispute arose from the applicant's alleged failure to comply with a condition of her visa, specifically condition 8202(2)(a), which required her to be enrolled in a registered course of study. The applicant did not dispute that her enrolment in the Science course had ceased on 24 August 2016 due to funding issues, and that she had not been enrolled in a registered course since that date. The review was heard by the Tribunal.

The Tribunal was required to determine two primary issues. Firstly, whether the applicant had breached condition 8202(2)(a) of her visa. Secondly, if a breach was established, whether the discretionary power under section 116(1) of the Migration Act 1958 (Cth) to cancel her visa should be exercised. The applicant contended that the breach was unintentional, stemming from financial difficulties and subsequent depression and a wrist injury.

In its reasoning, the Tribunal found that the applicant was aware of condition 8202(2)(a) and that her failure to maintain enrolment in a registered course constituted a breach. The Tribunal rejected the applicant's assertion that the breach was beyond her control. It noted that the cancellation of her enrolment occurred on 24 August 2016, and she had ample opportunity to defer her studies prior to this date, particularly given her awareness of financial difficulties in Nigeria from late 2015. The Tribunal found no evidence to support her claims of depression at the relevant time, and while accepting the existence of funding issues, concluded they did not negate her responsibility to take steps to avoid the breach, such as deferring her enrolment. The Tribunal also considered the discretionary factors, noting the lack of financial evidence provided by the applicant and the absence of substantiation for her claimed mental health issues.

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