Lai (Migration)

The Administrative Appeals Tribunal considered the case of Mr Lai, who sought review of the Department of Immigration and Border Protection's decision to cancel his Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The dispute centred on whether Mr Lai had breached a condition of his visa, specifically condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course.

The Tribunal was required to determine if Mr Lai had complied with condition 8202, which mandates enrolment in a registered course and 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, weighing various factors including the purpose of the visa holder's stay, the extent of non-compliance, and any potential hardship.

The Tribunal found that Mr Lai had not been enrolled in a registered course from 27 November 2015 until the cancellation of his visa on 18 November 2016, thereby breaching condition 8202(2)(a). In considering the exercise of discretion, the Tribunal noted that Mr Lai had nearly 12 months to rectify his enrolment failure but did not do so. While accepting that Mr Lai's original intention was to study, the Tribunal gave this little weight due to the prolonged non-compliance. The Tribunal also found that Mr Lai had not provided information regarding any hardship that might result from the cancellation of his visa. Consequently, the Tribunal concluded that the considerations favouring cancellation outweighed those against it.

The Tribunal affirmed the decision to cancel Mr Lai's visa.