Liu (Migration)

This matter concerned an appeal by an applicant against the cancellation of her Student (Temporary) (Class TU) visa, Subclass 500. The applicant’s visa was cancelled on the grounds that she had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, specifically by not being enrolled in a registered course for a period of approximately seven months. The Administrative Appeals Tribunal was required to determine whether the applicant had indeed breached this condition and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the applicant had complied with condition 8202(2) of the Migration Regulations, which mandates enrolment in a registered course. The applicant conceded that she was not enrolled in a registered course from 23 December 2017 until she obtained a Confirmation of Enrolment on 30 July 2018. Consequently, the Tribunal found that the applicant had failed to comply with this condition, rendering her visa liable for cancellation under section 116(1) of the Migration Act 1958. The Tribunal then considered the exercise of discretion regarding the cancellation, having regard to the applicant's explanation for her non-enrolment, which included being a victim of theft of her enrolment fees, shame in not disclosing the incident to her parents, and attempting to save money through part-time work.

In its reasoning, the Tribunal acknowledged the difficult circumstances the applicant faced, including the financial impact of the theft and her mental health struggles. However, it found that these factors were outweighed by other considerations. Specifically, the Tribunal noted that the applicant did not take steps to defer her studies due to the theft or other compassionate grounds, nor did she promptly report the matter to the police. Furthermore, she did not engage with career or mental health professionals to address her difficulties. Weighing these factors, the Tribunal concluded that the circumstances favoured cancellation.

Accordingly, the Tribunal affirmed the decision to cancel the applicant’s visa.