LI (Migration)

This matter concerned an application to review the cancellation of a Student (Temporary) (Class TU) visa, subclass 573, held by the applicant. The applicant's visa was cancelled on the basis that they had breached condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course of study. The applicant had initially enrolled in a diploma course but subsequently discontinued it due to academic difficulties and enrolled in an English language course. The Tribunal was required to determine whether the applicant had indeed breached condition 8202 and, if so, whether the decision to cancel the visa should be affirmed.

The central legal issue was whether the applicant had complied with condition 8202 of the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course, not be certified by their education provider as not achieving satisfactory course progress, and not be certified as not achieving satisfactory course attendance. The applicant's visa was cancelled because information indicated they had not been enrolled in a registered course since May 2016, thus potentially failing to meet the requirement of condition 8202(2)(a).

The Tribunal found that the applicant had not complied with condition 8202(2) as they were not enrolled in a registered course at the time of the delegate's decision. While the applicant provided reasons for their enrolment changes, including academic struggles, depression, and anxiety, the Tribunal was not satisfied that the applicant's present intention was to remain in Australia for the purposes of study, given the substantial period of non-enrolment. Despite the applicant's claims of hardship and a formulated study plan, the Tribunal concluded that the breach was significant and exercised its discretion to affirm the cancellation of the visa.