Cheng (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a visa holder to be enrolled in a registered course.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202(2) of the Migration Regulations 1994, which mandates enrolment in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had not been enrolled in a registered course, thus breaching condition 8202(2). However, in exercising its discretion regarding cancellation, the Tribunal had regard to several factors. These included the applicant's compelling reason to remain in Australia to complete her Master of Design at the University of New South Wales, her dream course, and her continued efforts to defer commencement due to previous visa cancellations. The Tribunal also considered evidence of illness and misleading advice from a migration agent as contributing factors to the non-compliance, and noted the absence of other visa breaches.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's visa.