FATIMA (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the cancellation of the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant's visa had been cancelled by the delegate on the grounds that she was not enrolled in a registered course of study, thereby breaching condition 8202 of the Migration Regulations 1994. The Tribunal was required to determine whether the applicant had indeed breached this condition and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the applicant had complied with condition 8202 of the Migration Regulations 1994, which mandates that a student visa holder be enrolled in a full-time registered course and maintain satisfactory course progress and attendance. The Tribunal also considered the exercise of discretion regarding visa cancellation, examining factors such as the purpose of the applicant's stay, her compliance with visa conditions, the hardship that cancellation might cause, and the circumstances that led to the ground for cancellation.

The Tribunal found that the applicant had not complied with condition 8202(2) as she had not been enrolled in a registered course since 2 August 2018, a fact she affirmed. In considering the discretion to cancel the visa, the Tribunal noted that while the applicant stated her mother's health condition and her own depression as reasons for not commencing her studies, she provided no documentary evidence to support these claims, nor did she explain why she did not defer her course. While acknowledging some potential financial and emotional hardship, the Tribunal gave this factor little weight. The Tribunal concluded that the circumstances giving rise to the non-compliance were not demonstrably beyond the applicant's control, and therefore, the decision to cancel the visa was affirmed.