Li (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 of study since 26 March 2018. The applicant did not attend a scheduled hearing, having informed the Tribunal through her migration agent that neither she nor her agent would attend. The Tribunal proceeded to make a decision on the review without further action to enable the applicant to appear.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her student visa. If a breach was established, the Tribunal was then required to consider whether the discretion to cancel the visa should be exercised. Condition 8202 relevantly requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance.

The Tribunal found that the applicant had breached condition 8202, as she had not been enrolled in a full-time registered course of study since 26 March 2018, a period exceeding 15 months. This cessation of studies appeared to be voluntary. In considering the exercise of discretion to cancel the visa, the Tribunal noted that while the applicant's purpose for being in Australia was to study, this was given limited weight in her favour. The Tribunal gave substantial weight in favour of cancellation to the significant period of non-enrolment and the voluntary cessation of studies. The Tribunal also found that the applicant had not provided any evidence regarding the degree of hardship that might be caused by cancellation, and as her visa would have otherwise expired shortly, no weight was given to hardship in her favour.

The Tribunal concluded that the decision to cancel the applicant’s visa should be affirmed.