ALI (Migration)

The Administrative Appeals Tribunal considered whether to affirm the decision to cancel the visa of an applicant who held a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute centred on the applicant's alleged failure to comply with a condition of his visa, which led to the cancellation of his visa by the Department.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was enrolled in a registered course as required by regulation 8202(2)(a). If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, despite the breach.

The Tribunal found that the applicant had breached condition 8202(2)(a) because the evidence, primarily from the Provider Registration and International Student Management system (PRISMS), indicated he was not enrolled in a registered course for the period between 3 September 2016 and 4 June 2017. The Tribunal noted that ceasing enrolment in a registered course constitutes a breach, referencing *Liu v MIMIA* [2003] FCA 1170. In considering the discretion to cancel, the Tribunal weighed the purpose of a student visa against the applicant's nine-month period of non-enrolment, deeming it a significant and serious breach. While acknowledging potential financial difficulties and the consequences of unlawful status, the Tribunal found no compelling reasons, such as extenuating circumstances or impact on family members, to exercise its discretion not to cancel the visa.

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