Li (Migration)

This matter concerned an application by the holder of a Student (Temporary) (Class TU) visa, subclass 500, to review the cancellation of her visa. The cancellation was based on the applicant's alleged failure to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a full-time registered course. The applicant contended that she had not breached this condition, or alternatively, that the discretion to cancel her visa should not have been exercised.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance. If a breach was found, the Tribunal also had to consider whether, in the exercise of its discretion, the visa cancellation decision should be upheld or set aside, having regard to the specific circumstances of the applicant's case.

The Tribunal found that the applicant had indeed not been enrolled in a registered course between 12 April 2019 and 2 March 2020, thus technically breaching condition 8202(2)(a). However, the Tribunal gave significant weight to the applicant's personal circumstances. She had withdrawn from her initial Masters course due to serious mental health issues, supported by medical evidence. Subsequently, she enrolled in a Diploma of Leadership and Management, but her enrolment was cancelled for unsatisfactory progress. The Tribunal accepted her evidence that she was unaware of the cancellation because the college continued to request fee payments. Crucially, the Tribunal found that the applicant had suffered financial abuse from her husband during this period, which prevented her from seeking necessary mental health treatment. Considering these mitigating factors, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision to cancel the applicant's subclass 500 (Student) visa and substituted a decision not to cancel it.