Hong (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa was cancelled. The applicant, a Chinese national, had been in Australia since 2010, completing secondary education and commencing higher education studies. The cancellation was based on the applicant's alleged failure to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course for more than 12 months.

The primary legal issue before the Tribunal was 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 under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had not complied with condition 8202(2) as he was not enrolled in a registered course. This was based on the applicant's admission during the hearing and in a written statement provided to the Tribunal, where he explained that he discontinued his enrolment in a registered course in mid-2015 after completing only one term of a Diploma of Commerce. While the applicant provided explanations for his lack of enrolment, including significant emotional distress stemming from family issues and a depressive state, the Tribunal considered these factors in its exercise of discretion. The Tribunal noted the prolonged nature of the breach (in excess of two years), the applicant's awareness of his obligations, and his failure to contact the Department or return home.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal concluded that, in light of the significant breach of visa conditions and the applicant's conduct, the cancellation of the visa was warranted.