CHEN (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant had been admitted to Australia to study but was found to have breached a condition of his visa. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant had complied with his visa conditions and, if not, whether the discretion to cancel his visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The Tribunal also considered the exercise of the discretion to cancel the visa, taking into account factors such as the purpose of the applicant's stay, the extent of compliance with visa conditions, the hardship that might be caused by cancellation, and the circumstances in which the ground for cancellation arose.

The Tribunal found that the applicant had breached condition 8202(2) as he was not enrolled in a registered course, a fact he admitted and which was confirmed by departmental records. The Tribunal noted that the applicant had not provided any information demonstrating a compelling need to remain in Australia, nor had he taken any steps to regularise his immigration status or engage with the Department or his education provider regarding his circumstances. While the applicant cited family health issues as the reason for ceasing his studies, he provided no further details and had not enrolled in any course since 2015. The Tribunal concluded that the applicant's breach was significant and that the absence of any attempt to address his situation weighed heavily against him.

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