Chiwara (Migration)

This matter concerned an appeal by the applicant against the cancellation of her Student (Temporary) (Class TU) visa, subclass 500. The applicant had failed to maintain enrolment in a registered course at the required Australian Qualifications Framework (AQF) level, thereby breaching condition 8202 of her visa. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had breached condition 8202 and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had breached condition 8202(2)(b) of her visa by failing to maintain enrolment in a registered course that would provide a qualification at the same or a higher AQF level than her original course. While this breach did not mandate cancellation under section 116(3) of the Migration Act 1958, the Tribunal then considered whether to exercise its discretion to cancel the visa. The applicant submitted that her breach was due to circumstances beyond her control, including parental divorce, mental health struggles, difficulties with online study, and issues with course enrolment and fees.

The Tribunal acknowledged the significant impact of visa cancellation but, after considering all the circumstances, concluded that the visa should be cancelled. The Tribunal found that the applicant's personal circumstances, while difficult, did not constitute circumstances beyond her control that would prevent her from complying with her visa conditions. The Tribunal affirmed the decision to cancel the applicant's visa.