Mak (Migration)

This matter concerned an application to the Administrative Appeals Tribunal (the Tribunal) to review the cancellation of the applicant's Student (Temporary) (Class TU) Subclass 500 visa. The applicant's visa was cancelled on the basis that she had breached condition 8202 of the Migration Regulations 1994 by failing to be enrolled in a registered course of study.

The Tribunal was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994 and, if so, whether the discretion to cancel the visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance.

The Tribunal found that the applicant had not complied with condition 8202 as she had not been enrolled in a registered course from 17 November 2019. While the applicant claimed her failure to study was due to depression, the Tribunal found her evidence on this point unconvincing. She had not sought treatment for depression until shortly before the hearing, could not recall the name of her medication, and had not informed her migration agent of her condition when submissions were being made on her behalf. The Tribunal also noted that her reasons for not attending classes, fearing her classmates would "find out" about her depression, were not credible. Having found a breach of a visa condition, the Tribunal considered the discretion to cancel the visa, assessing factors including the purpose of the applicant's stay, the extent of her compliance, potential hardship, and the circumstances giving rise to the breach. The Tribunal concluded that the applicant had not demonstrated a compelling need to remain in Australia, had not complied with her visa conditions, and had not provided sufficient evidence to suggest the circumstances of the breach were beyond her control.

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