LI (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of LI (Migration), concerning the cancellation of the applicant's Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The dispute arose when the Department of Home Affairs notified the applicant of their intention to cancel his visa due to a perceived breach of condition 8202, which requires a student to be enrolled in a registered course. The applicant failed to respond to this notice within the stipulated timeframe.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, and if so, whether the Department's decision to cancel his visa should be upheld. Condition 8202 mandates that a student must be enrolled in a registered course and maintain satisfactory course progress and attendance. The applicant admitted to not being enrolled in a registered course for a significant period, which constituted a ground for cancellation under section 116(1)(b) of the Migration Act 1958.

The Tribunal acknowledged the applicant's admitted breach of condition 8202. However, it found that the breach was due to compelling and serious recurrent medical issues affecting the applicant's knees, which necessitated his return to China for treatment on multiple occasions and significantly disrupted his studies. The Tribunal also noted that the Department's notice of intention to cancel was inadvertently sent to the applicant's junk email folder, preventing him from responding in time. Crucially, the Tribunal considered the significant hardship cancellation would cause the applicant, including the potential inability to pursue tertiary education in China due to expired entrance scores, and concluded that the circumstances of the breach were largely beyond his control.

In light of these compelling circumstances, the Tribunal exercised its discretion to set aside the decision to cancel the applicant's visa, substituting it with a decision not to cancel.