He (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant, a citizen of China, had arrived in Australia on a Working Holiday visa before being granted a Student visa in July 2020. Her enrolment in a Diploma and Advanced Diploma of Leadership and Management was cancelled in February 2021 due to unsatisfactory course progress. She subsequently enrolled in a Certificate IV in Patisserie after receiving a notice of intention to cancel her visa. The Administrative Appeals Tribunal (AAT) considered the applicant's circumstances, including her personal history, health issues, financial situation, and subsequent course enrolments.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and maintain satisfactory course progress and attendance. Specifically, the Tribunal had to determine if the applicant had failed to maintain enrolment in a registered course from February 2021 until her new enrolment in November 2022. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had not disputed that she was not enrolled in a registered course of study from 2 February 2021, when her initial enrolment was cancelled for unsatisfactory progress, until 23 November 2022, when she enrolled in a new course. This failure constituted a breach of condition 8202(2) of her visa. Having established the grounds for cancellation under s.116(2)(b) of the Migration Act 1958, the Tribunal then considered the exercise of its discretion. While acknowledging the applicant's personal circumstances, including marital issues, health concerns, and financial capacity, the Tribunal concluded that these factors did not outweigh the breach of the visa condition.

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