Kaewthong (Migration)

This matter concerned an appeal by the applicant, Ms Kaewthong, against the cancellation of her Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The applicant's visa was cancelled on the grounds that she had failed to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course of study between 12 April 2017 and 7 November 2017. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had breached condition 8202 and, if so, whether the discretion to cancel her visa should be exercised.

The Tribunal found that the applicant had indeed breached condition 8202(2) of the Regulations, as she admitted to not being enrolled in any course of study during the specified period. However, the Tribunal then considered the exercise of discretion regarding the cancellation of the visa. In doing so, it had regard to the applicant's stated sole purpose of studying in Australia, her subsequent re-enrolment and satisfactory progress in her studies, and crucially, her compelling explanation for the breach. The applicant provided evidence that during the period of non-enrolment, she experienced significant distress and depression due to sexual harassment and stalking by a classmate, which led her to cease studying. The Tribunal was persuaded by her explanation and found that her educational institution's response to her concerns was inadequate.

Weighing these factors, the Tribunal concluded that the applicant's explanation for the breach significantly ameliorated its seriousness. Given her sole purpose of study, her subsequent re-enrolment and progress, and the compelling personal circumstances that led to the breach, the Tribunal determined that the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.