Chan (Migration)

This matter concerned an application by Mr Chan for review of the decision to cancel his Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The applicant had been granted the visa on 22 April 2015, with an intended enrolment in a Bachelor of Commerce from 27 July 2015 to 31 July 2018. The visa was cancelled on the basis that the applicant had breached condition 8202 of the Migration Regulations 1994 (Cth) by failing to maintain enrolment in a registered course.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Regulations, and if so, whether the discretion to cancel his visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a registered course, maintain enrolment at the appropriate level, and achieve satisfactory course progress and attendance. The applicant’s visa was cancelled because he failed to maintain enrolment in a full-time registered course for a period of over seven months in 2017, having been suspended from his Bachelor of Commerce course.

The Tribunal found that the applicant had not complied with condition 8202(2) as he was not enrolled in a registered course. In considering the discretion to cancel the visa, the Tribunal had regard to the applicant’s purpose for travel, his compelling need to remain in Australia, the extent of his compliance with visa conditions, and the hardship that might be caused by cancellation. While acknowledging the applicant’s desire to complete his studies and the financial hardship his family had incurred, the Tribunal was not persuaded that he had a compelling need to remain in Australia. The Tribunal also found that the applicant had not provided sufficient evidence to support his claims of not feeling safe in Hong Kong due to past political activities.

Ultimately, the Tribunal affirmed the decision to cancel the applicant’s visa, concluding that, on the evidence before it, the applicant had breached condition 8202 and that the discretion to cancel the visa should be exercised.