Deletina (Migration)

This matter concerned an appeal by an applicant against the decision to cancel her Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant had been enrolled in a Bachelor of Nursing degree but discontinued her studies due to financial difficulties. The visa was cancelled by the Department on the basis that the applicant had breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a registered course. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant had breached condition 8202 and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant had complied with 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 applicant did not dispute that she had ceased enrolment in her Bachelor of Nursing course on 23 October 2015 and remained unenrolled until her visa was cancelled on 21 November 2016. Consequently, the Tribunal found that the applicant had failed to comply with condition 8202(2)(a) of the Regulations.

Having found a breach of a visa condition, the Tribunal then considered whether to exercise its discretion to cancel the visa. The Tribunal had regard to the applicant's original purpose of travel, which was to study, and her stated desire to continue her studies. However, the Tribunal was not satisfied that the applicant had demonstrated a compelling need to remain in Australia, finding that her relationship with a de facto partner did not constitute a sufficient reason to remain as a student. While acknowledging the applicant's compliance with other visa conditions, the Tribunal found no satisfactory evidence of financial or psychological hardship that would result from the cancellation of her visa.

Ultimately, the Tribunal concluded that, considering all the circumstances, the decision to cancel the applicant's visa should be affirmed.