Guo (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The applicant's visa was cancelled on the grounds that they were not enrolled in a registered course, which constituted a breach of condition 8202 of Schedule 8 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202, and if so, whether the discretion to cancel the visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The applicant had been granted compassionate leave to travel to China due to a family illness, during which time they were withdrawn from their enrolled units. Crucially, there was no evidence that the applicant had re-enrolled after their period of leave, leading to the finding that they were not enrolled in a registered course and had therefore breached condition 8202(2).

Despite finding a breach of the visa condition, the Tribunal was required to consider whether to exercise its discretion to cancel the visa. The Tribunal had regard to the applicant's purpose for being in Australia, which was to study, and their stated compelling need to remain due to family circumstances and the desire for overseas qualifications. However, the Tribunal was not satisfied that the applicant had a compelling need to remain in Australia, nor that they had no study options in their home country. Nevertheless, the Tribunal noted the applicant's otherwise compliant record with visa conditions and acknowledged the hardship that would be caused by visa cancellation. Furthermore, the Tribunal considered that the circumstances leading to the non-compliance, namely the need to take compassionate leave, were beyond the applicant's control.

Considering all the circumstances, the Tribunal concluded that the visa should not be cancelled. The decision under review was set aside, and a decision was substituted to not cancel the applicant's Subclass 573 visa.