LEUNG (Migration)

This matter concerned an appeal by an applicant whose Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the *Migration Regulations 1994* and, if so, whether the discretion to cancel the visa should have been exercised. The decision was made by Joseph Lindsay, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the *Migration Regulations 1994*. This condition requires a student visa holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance. If a breach of this condition was found, the Tribunal then had to consider whether to exercise its discretion under section 116(1) of the *Migration Act 1958* to cancel the visa, taking into account various factors.

The Tribunal found that the applicant had breached condition 8202(2) as she had not been enrolled in a registered course of study since 13 June 2016, a fact she admitted. In considering the exercise of discretion, the Tribunal had regard to the applicant's stated purpose of study, her compelling need to remain in Australia, her compliance with visa conditions, potential breaches of international obligations, and the circumstances surrounding the ground for cancellation. The Tribunal found the applicant had no compelling need to remain in Australia and placed low weight on other mitigating factors presented, such as financial hardship, poor English skills, depression, and family issues. Crucially, the Tribunal found key aspects of the applicant's evidence regarding her interaction with her course provider, her claims about depression, and the death of her brother to be not credible, noting inconsistencies in her account of communication with her education provider.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that her circumstances, particularly in light of credibility issues and her admitted non-compliance, did not warrant the exercise of discretion to allow her to retain the visa.