Cheak (Migration)

The Administrative Appeals Tribunal considered the case of an applicant holding a Student (Temporary) (Class TU) visa, subclass 500. The dispute arose from the Department's decision to cancel the applicant's visa on the grounds of failing to comply with visa condition 8202, specifically by not being enrolled in a registered course of study for a significant period. The applicant contended that the non-enrolment was due to the improper management of their education provider and that they had continued to pay tuition fees and attend classes.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which mandates enrolment in a registered course, satisfactory course progress, and satisfactory attendance. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, as the breach did not mandate cancellation under section 116(3) of the Migration Act 1958.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) by not being enrolled in a registered course between 4 August 2017 and 9 February 2018. In exercising its discretion, the Tribunal considered the purpose of a student visa, the significant length of the non-enrolment period (over six months), and the applicant's failure to provide further evidence or attend the Tribunal hearing. The Tribunal was not satisfied that the breach occurred due to circumstances beyond the applicant's control or that there were extenuating or compassionate circumstances.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that the breach was significant and that the visa should be cancelled.