Lu (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 572. The applicant's visa was cancelled by the Department on the grounds that they had failed to comply with a condition of their visa, specifically condition 8202, by not being enrolled in a registered course of study. The applicant did not respond to the Notice of Intention to Consider Cancellation issued by the Department.

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 registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa. The Tribunal was required to determine if the applicant's non-enrolment constituted a failure to meet the requirements of the visa, and if so, whether the circumstances warranted affirming the cancellation decision.

The Tribunal found that the applicant had breached condition 8202(2) as they were not enrolled in a registered course from 8 December 2017 until the delegate's decision on 4 January 2019, a period of almost 13 months. The applicant provided no evidence of current enrolment, with the only academic record dating back to 2012-2013. The Tribunal considered the purpose of the visa, which was for study, and noted the significant period of non-enrolment without explanation. This, coupled with the applicant remaining onshore unlawfully after the cancellation, weighed against exercising discretion to set aside the cancellation.

The Tribunal affirmed the decision to cancel the applicant's visa.