Le (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa was cancelled. The dispute centred on whether the applicant had breached a condition of her 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 and to maintain satisfactory course progress and attendance.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of her visa. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1)(b) of the Migration Act 1958. The applicant’s visa was cancelled on the basis that she was not enrolled in a registered course of study since 21 October 2016, a period of approximately nine months at the time of the delegate's decision.

The Tribunal found that the applicant had indeed breached condition 8202 by failing to maintain enrolment in a registered course since 21 October 2016. The applicant’s own evidence confirmed this non-enrolment and acknowledged difficulties in transferring between educational providers, leading to a lack of educational achievement over more than four years in Australia. While the applicant suggested confusing advice from migration agents and her educational providers, and presented email correspondence concerning her mental state, the Tribunal found no evidence that these issues were raised with her education providers prior to her non-enrolment or that she sought to defer her studies on these grounds. The Tribunal considered the breach to be significant, given the length of time and the fundamental requirement of enrolment for the purpose of a student visa. Despite acknowledging the potential disappointment for the applicant, particularly in light of her recent marriage, the Tribunal was not satisfied that there were extenuating circumstances or a degree of hardship that would warrant preventing the cancellation of the visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant’s visa.