Han (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 573, was cancelled. The dispute centred on whether the applicant had breached a condition of their visa, leading to the cancellation decision by the Department of Immigration and Border Protection.

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 had to determine if the applicant had maintained enrolment in a registered course of study as required by subclause 8202(2). If a breach was found, the Tribunal then had to consider whether to exercise its discretion to affirm the cancellation of the visa.

The Tribunal found that the applicant had breached condition 8202(2) because they were not enrolled in a CRICOS registered course between 11 May 2014 and 7 October 2016, a period of 878 days. While the applicant provided a medical certificate indicating wrist and tendon damage, the Tribunal was not satisfied that this prevented them from studying. The Tribunal considered the applicant's stated intention to study, but given the prolonged period of non-enrolment, it was not satisfied that study remained the applicant's present intention for remaining in Australia. The Tribunal concluded that the breach was significant and, after considering the potential hardship to the applicant, affirmed the decision to cancel the visa.