Gao (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Subclass 500 (Student) visa. The dispute arose because the applicant was not enrolled in a registered course of study, which constituted a breach of condition 8202 of the Migration Regulations 1994. The Tribunal was required to determine whether the applicant had breached this condition and, if so, whether the discretion to cancel his visa should be exercised.

The Tribunal found that the applicant had indeed breached condition 8202 by failing to maintain enrolment in a registered course of study for a significant period. While the ground for cancellation under s.116(1)(b) of the Migration Act 1958 did not mandate cancellation, the Tribunal was required to consider whether to exercise its discretion. In doing so, the Tribunal had regard to the applicant's claims of intention to study, his assertions of hardship, including financial and emotional difficulties, and the potential consequences of cancellation such as becoming an unlawful non-citizen and limitations on future visa applications.

Despite the applicant's claims of hardship, including a fractured elbow, difficulties with English, homesickness, and dissatisfaction with his course, the Tribunal was not satisfied that these factors outweighed the grounds for cancellation. The Tribunal noted the lack of corroborating evidence for some of his claims and observed that the applicant had been advised of the requirement to maintain enrolment with no more than a two-month gap. The Tribunal concluded that the applicant's prolonged failure to enrol indicated his stated intention to continue studying was not genuine.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.