CHAN (Migration)

This matter concerned the review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The applicant had been found to be in breach of condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course of study for a significant period. The applicant had subsequently enrolled in a General English course, which was not considered a registered course suitable for the applicant's visa type.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations 1994, and if not, whether the discretion to cancel the applicant's visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance. The applicant acknowledged not being enrolled in a registered course during the specified period, thereby breaching condition 8202(2).

The Tribunal considered the applicant's submissions regarding the reasons for non-enrolment, including difficulties with studies, a period of overseas travel during which correspondence from the education provider was missed, and the subsequent suspension from the university. Despite these explanations, the Tribunal found that the applicant had not complied with the visa condition. In exercising its discretion, the Tribunal had regard to various factors, including the purpose of the visa, the extent of compliance, potential hardship, and extenuating circumstances. However, the applicant's failure to engage with the education provider regarding the suspension and the fact that the enrolment in a lower-level course was not suitable for the visa type weighed against exercising discretion in the applicant's favour.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that the circumstances did not warrant the exercise of discretion to set aside the cancellation.