Laheeru (Migration)

This matter concerned an application by Ms. Laheeru, a citizen of Sri Lanka, to review the cancellation of her Student (Temporary) (Class TU) visa, subclass 500. The visa was granted on 23 January 2019 for the purpose of undertaking a Bachelor of Criminology and Criminal Justice at Griffith University. The Department of Home Affairs had cancelled Ms. Laheeru's visa under section 116(1) of the Migration Act 1958 (Cth) on the basis that she had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) by failing to maintain enrolment in a registered course. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the cancellation decision should be affirmed.

The primary legal issue before the Tribunal was whether Ms. Laheeru had complied with condition 8202 of her visa. This condition, as relevant to her visa, required her to be enrolled in a full-time registered course, maintain enrolment in a course at the same or higher Australian Qualifications Framework (AQF) level as her original course, and not have been certified by her education provider as not achieving satisfactory course progress or attendance. The Tribunal also had to consider whether, having found a breach, it should exercise its discretion to cancel the visa.

The Tribunal found that Ms. Laheeru had breached condition 8202 as her enrolment records indicated she had not been enrolled in a registered course since 7 August 2019, a period of approximately two years and five months before the Notice of Intention to Consider Cancellation was issued. While Ms. Laheeru provided reasons for her non-enrolment, including health issues, financial hardship, and the impact of the COVID-19 pandemic, and submitted evidence of a new enrolment in a Diploma of Early Childhood Education and Care, the Tribunal was not satisfied that these circumstances warranted excusing the breach. The Tribunal noted that her new enrolment was only secured after the Department initiated the cancellation process and expressed reservations about her stated career prospects in her home country, despite accepting her desire to study and her acknowledgement of past mistakes.

Ultimately, the Tribunal affirmed the decision to cancel Ms. Laheeru's visa. The Tribunal concluded that the ground for cancellation under section 116(1)(b) of the Act had been established due to the breach of condition 8202. In exercising its discretion, the Tribunal found that the circumstances did not warrant setting aside the cancellation decision, leading to the affirmation of the delegate's decision.