Kinyanjui (Migration)

This matter concerned an appeal by the applicant against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 500. The applicant had been enrolled in a Diploma of Nursing but ceased enrolment between 20 December 2018 and 3 June 2019, the period during which the Department issued a Notice of Intention to Consider Cancellation. The applicant did not dispute this period of non-enrolment but provided reasons relating to medical conditions, unverified claims of bullying, and plans to resume study in a different subject. The decision under review was made by the Administrative Appeals Tribunal (AAT).

The primary legal issue before the AAT 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 full-time 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, taking into account factors such as the purpose of the applicant's stay, any compelling need to remain in Australia, the extent of compliance with other visa conditions, and the hardship that might be caused by cancellation.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) by not being enrolled in a full-time registered course during the specified period. While acknowledging the applicant's stated reasons, the Tribunal was not satisfied that the applicant had demonstrated a compelling need to remain in Australia to complete further study, particularly given her prior degree qualifications and a change in her intended field of study without adequate justification. The Tribunal also noted that while there was no evidence of non-compliance with other conditions, the failure to maintain enrolment was a fundamental breach of a student visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal concluded that, considering all the circumstances, the cancellation of the visa was appropriate.