Lee (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Ms Hyeyoung Lee, who held a Student (Temporary) (Class TU) (Subclass 500) visa. The dispute arose from the cancellation of her visa by the Department of Home Affairs, which Ms Lee sought to have reviewed by the Tribunal. The core of the matter concerned whether Ms Lee had breached a condition of her visa by failing to maintain enrolment in a registered course at the required Australian Qualifications Framework (AQF) level.

The legal issue before the Tribunal was whether Ms Lee had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth). Specifically, the Tribunal had to determine if Ms Lee had maintained enrolment in a registered course that would lead to a qualification at the same or a higher AQF level than her original course, as required by condition 8202(2)(b). If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958 (Cth).

The Tribunal found that Ms Lee had not complied with condition 8202(2)(b) because she had changed her course from Bachelor of Business (Accounting) to Commercial Cookery, which was at a lower AQF level. Ms Lee admitted to not maintaining enrolment at the required AQF level since 28 March 2019. While Ms Lee presented reasons for this change, including alleged incorrect advice from a migration agent and difficulties with her initial course, the Tribunal concluded that these circumstances did not negate the breach of the visa condition. After considering the matters raised by Ms Lee, including her desire to complete her studies and her work in early childhood education, the Tribunal ultimately exercised its discretion to affirm the cancellation of her visa.