LEW (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The applicant had failed to attend a scheduled hearing before the Tribunal and had not provided any further documentation or submissions beyond what was initially provided to the Department. The Tribunal was therefore required to determine whether the applicant had breached visa condition 8202 and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether the applicant had complied with condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. The applicant's visa had been cancelled on the basis that he was not enrolled in a registered course of study since 19 October 2016. The Tribunal also considered the exercise of discretion to cancel the visa, taking into account factors such as the purpose of the applicant's travel and stay in Australia, his compliance with visa conditions, the potential hardship if the visa were cancelled, and his behaviour towards the Department and the Tribunal.

The Tribunal found that the applicant had breached condition 8202(2)(a) by failing to be enrolled in a registered course for a significant period. In considering the exercise of discretion, the Tribunal noted that the applicant had not responded to the Notice of Intention to Consider Cancellation, nor had he participated in the review process by attending the hearing or providing further submissions. The Tribunal concluded that the applicant's failure to be enrolled in a registered course for over nine months was inconsistent with the purpose of a student visa and weighed heavily in favour of cancellation. Furthermore, the applicant's lack of engagement with the review process suggested he did not have a compelling need to remain in Australia.

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