ARIAS CACERES (Migration)

This matter concerned an appeal by the applicant, Arias Caceres, against the decision of the delegate to cancel his Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa. The applicant's visa was cancelled on the basis that he had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, specifically by not being enrolled in a registered course. The Tribunal was required to determine whether the applicant had indeed breached condition 8202 and, if so, whether to exercise its discretion to affirm the cancellation of the visa.

The Tribunal considered whether the applicant had complied with condition 8202, which mandates enrolment in a registered course, satisfactory course progress, and satisfactory course attendance. The evidence before the Tribunal indicated that the applicant had not been enrolled in a registered course from 14 October 2015 until 21 September 2016, a period following his initial enrolment. Although the applicant subsequently obtained new enrolments, these were secured after receiving a Notice of Intention to Consider Cancellation. The Tribunal found that this significant gap in enrolment constituted a breach of condition 8202(2). In considering the exercise of discretion, the Tribunal had regard to the applicant's stated purpose for travel, the circumstances leading to the breach, and the potential hardship.

The Tribunal was not satisfied that the applicant's present intention for staying in Australia was for the purpose of study, given the substantial period of non-enrolment that occurred before new enrolments were obtained. While acknowledging that the applicant might suffer some financial hardship and could potentially be subject to detention and removal, the Tribunal was satisfied that he could retain a Bridging visa to finalise his affairs. Weighing all the circumstances, including the significant breach of visa conditions and the applicant's subsequent actions, the Tribunal concluded that the cancellation of the visa was appropriate. The Tribunal affirmed the decision to cancel the applicant’s visa.