Leung (Migration)

This matter concerned the review of a decision by the Department to cancel the applicant's Subclass 572 (Vocational Education and Training Sector) student visa. The applicant, a citizen of Hong Kong, had been granted the visa to undertake English language studies and vocational qualifications in Australia. The cancellation was based on the applicant's failure to maintain enrolment in a registered course, which constituted a breach of condition 8202 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her student visa, specifically subclause (2) which requires the holder to be enrolled in a registered course. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958. The applicant had provided submissions and supporting documentation to the Department and the Tribunal, including evidence of family health issues, bereavement, and her own poor English skills, as well as a letter of offer for future study.

The Tribunal found that the applicant had not been enrolled in a registered course from 13 June 2016 until the date of the delegate's decision on 12 May 2017, a fact she did not dispute. This failure to maintain enrolment meant she had not complied with condition 8202(2). Despite considering the applicant's personal circumstances, including family health issues and the death of her brother, the Tribunal concluded that these circumstances did not outweigh the breach of the visa condition. The Tribunal affirmed the decision to cancel the applicant's visa.