Dong (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector student visa was cancelled. The cancellation was based on the applicant's alleged failure to comply with a condition of their visa. The applicant had been granted the visa on 14 January 2014, but records indicated they were not enrolled in a registered course of study from 1 July 2015 onwards, a fact not disputed by the applicant.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had failed to meet the requirement of being enrolled in a registered course, as stipulated by condition 8202(2). If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Act.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course from 1 July 2015 until the visa cancellation on 15 September 2016, a period considered significant. While acknowledging the applicant's initial intention to study and completion of prior English courses, the Tribunal found the applicant's explanation for the lack of enrolment – family financial problems – to be vague and unsupported by evidence. The Tribunal also noted that the applicant had not worked in Australia, which further undermined the claim of financial inability to continue studies. Applying government policy guidelines and considering the extent of the breach, the Tribunal concluded that the discretion to cancel the visa should be exercised. The Tribunal affirmed the decision to cancel the applicant’s visa.