Garae (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose student visa was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal needed to determine if the applicant was enrolled in a registered course of study, as required by subclause 8202(2). If a breach of this condition was established, the Tribunal was then required to consider the exercise of its discretion under section 116(1) of the Migration Act 1958 to affirm or set aside the visa cancellation.

The Tribunal found that the applicant had breached condition 8202(2) because evidence indicated they had not been enrolled in a registered course of study since 11 September 2017. The applicant's initial enrolment in a Master of Information Technology course at Deakin University had been cancelled due to unpaid fees, failure to submit sufficient work, and missing an exam. The Tribunal concluded that the applicant's intention to study, while initially genuine, had not been fulfilled and therefore did not constitute a compelling reason to remain in Australia. Furthermore, the Tribunal considered the applicant's non-compliance for a period of almost nine months to be significant. After weighing these factors, including the potential hardship to the applicant, the Tribunal affirmed the decision to cancel the applicant's visa.