Gong (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 500, was cancelled. The cancellation was based on the applicant's failure to maintain enrolment in a registered course of study, which constituted a breach of condition 8202(2)(a) of the Migration Regulations 1994. The applicant had provided reasons for this non-compliance, including marital breakdown, mental health issues, and a desire to remain in Australia for purposes not aligned with the student visa.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202(2)(a) of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course. If a breach was found, the Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances presented by the applicant. The applicant's visa history indicated multiple instances of enrolment cancellations by education providers due to non-commencement or unsatisfactory attendance, and a subsequent application to be included as a dependent on a skilled visa, suggesting an intention to remain in Australia for reasons other than study.

The Tribunal reasoned that the applicant had demonstrably failed to comply with condition 8202(2)(a) from 30 July 2018 onwards, as their enrolment in a registered course had been cancelled and they had not taken substantive steps to re-enrol. While acknowledging the applicant's stated personal difficulties, the Tribunal found that these did not negate the factual breach of the visa condition. Furthermore, the Tribunal afforded significant weight to the applicant's inclusion as a dependent on a skilled visa application, viewing this as evidence of an intention to remain in Australia for purposes inconsistent with the grant of a student visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.